Lord Livsey of Talgarth: My Lords, while we on these Benches associate ourselves with his remarks about good will to the people of Wales, does the Minister agree that, in the spirit of the Welsh rugby team and St David, the Richard commission recommendations on extending primary legislative powers to the Assembly should go ahead? Have he or any of his colleagues had discussions with the Welsh Assembly and is it their wish to extend the powers of the Assembly to primary legislation?

Lord Evans of Temple Guiting: My Lords, I am grateful to the noble Lord, Lord Roberts, for his question, but it is difficult to answer because Conservative Party policy on devolution is, to put it in the vernacular, all over the place. Bill Wiggin, the Conservative Party shadow spokesperson for Wales, tells us that the people of Wales would do better without an Assembly, the Tory leader in the Assembly, Nick Bourne, says that it would be disastrous to abolish the Assembly, and, best of all, after visiting Wales in January, the Leader of the Opposition, Michael Howard, said that he has not yet made up his mind but he will focus on it in due course.

The Earl of Dundee: My Lords, I thank the Minister for that reply. Does she accept that although an increase in properly designed community sentences may reduce costs, crime and recidivism, such improvements will not occur, first, if the probation service remains short-changed—just now there is a lack of 1,100 probation officers—and, secondly, unless there is a far greater allocation of resources than is currently proposed for measures to help prevent young adults offending in the first place?

Baroness Scotland of Asthal: My Lords, I agree with the noble Earl that it is very important that the probation service is properly resourced. It has a very important role to play. Since 1997, spending on prisons has increased in real terms by 30 per cent and on probation by 46 per cent. However, there has been a significant increase in sentence severity despite those changes. So we are making a real commitment to resource the probation service to enable it to do the job which it is more than fitted to do.

Lord Dholakia: My Lords, will the Minister confirm that recent research studies indicate that curfew orders have not been effective and that people who receive custodial sentences re-offend within two years? Does she consider that the resources given to the probation service are inadequate, in the sense that in some parts of London the probation service is almost at breaking point? Does she therefore consider that to improve non-custodial alternatives it is necessary to put much more resources into the probation service?

Baroness Scotland of Asthal: My Lords, as I have already made clear, the Government have already made a significant increase—a 46 per cent increase—in probation. We absolutely accept that those resources are needed, and they are now being put in place. The number of new probation officers has grown significantly and the Government will continue to meet that commitment. Curfew orders must be seen against the whole panoply of orders that join together to give us effective sentences and they have an effective part to play in proper control and sentencing.

The Lord Bishop of Worcester: My Lords, is it the Minister's view, as it is the view of most people engaged in prison reform work, that it is almost always—if not always—the case that far more can be accomplished to rehabilitate an offender by the use of a community service order over a long period than by custody over a short period, which simply produces disruption and instability in the Prison Service and prevents it from doing the work that it is best equipped to do?

Baroness Scotland of Asthal: My Lords, we have clearly set out our view that community sentences should be used for those non-dangerous, non-violent offenders where that would be most effective. I hope that noble Lords will remember that the menu of orders presented in the Criminal Justice Act 2003 takes us from conditional cautioning, before a person is brought to court, right the way through to custody minus, which comprises all those things that fall short of imprisonment. We think that we now have the appropriate menu from which the judge can choose both to punish and, hopefully, enhance rehabilitation and reduce the level of recidivism.

Lord Warner: No, my Lords, because we already have in progress an independent evaluation of the Evercare model by the National Primary Care Research and Development Centre. Its interim report provides evidence that care based on case-management principles will improve the lives of those with more complex needs arising from long-term conditions. The NHS and social care model published on 5 January recommends that health care providers in England adopt those principles to improve the care and support offered to their local population. That model draws on experience from overseas, including Evercare, and the NHS, without advocating any particular scheme, and will be supported by the 3,000 new community matrons that the Government are funding.

Baroness Neuberger: My Lords, I thank the Minister for his reply, but, having read the National Primary Care Research and Development Centre report on the Evercare model, it seems to me and many others who have reported on it that it is not the green light for which Ministers were hoping. Will the Government now invest in a much more robust evaluation further to what is being done at present in Manchester to consider different approaches to case-management, beyond what Evercare is doing and, meanwhile, stop recruiting the 3,000 community matrons that they want to take that forward until the evidence is far clearer?

Baroness Murphy: My Lords, does the Minister agree that case management is a tough and difficult job to do well, the complexity and difficulty of which is often underestimated, and that the successful overseas pilots in Australia and, extensively, in the United States, have all required significant financial levers, bringing together specialist care, primary care and social services? When will the Government produce schemes within the NHS and social services here that mirror those successful schemes with financial incentives?

Lord Warner: My Lords, it is of course down to primary care trusts under our shift of the balance of power and devolution of budgets to work out the details of schemes that are most appropriate to their areas. I will certainly look into out-of-hours provision in North Yorkshire and write to the noble Baroness.

Lord Skidelsky: My Lords, I thank the noble and learned Lord his reply. Nevertheless, I am left a bit puzzled. If the Written Answer that the noble and learned Lord gave to the noble Baroness, Lady Ramsay, on 17 March 2003 in this House was in fact an accurate distillation of his legal opinion of 7 March 2003, what is the objection to publishing the original text in its entirety, especially as non-publication is bound to strengthen the suspicion that the original text was doctored for public consumption in exactly the same way as the notorious intelligence dossier on weapons of mass destruction?

Lord Goldsmith: My Lords, I am again sorry that the noble Lord puts the question in those terms when I have categorically stated that nobody from the Prime Minister's Office nor the noble Baroness, Lady Morgan, nor the noble and learned Lord, Lord Falconer, had any part in the drafting. The advice that I gave was my genuinely held, independent view. What happened at that meeting is set out clearly in the report of the noble Lord, Lord Butler; that is, I conveyed to them my view and nothing more.

Lord Goldsmith: My Lords, I have always made clear that, in accordance with long-standing conventions followed by successive administrations, I am not going to get into the process by which legal advice was reached. Nor am I going to disclose confidential legal advice given in government. What matters, and what all these questions about process lead to, is whether the view that I expressed to this House and have expressed subsequently was my genuine view. It was. Was it a view which I reached independently? It was. Was it a view that I reached because I was leant on to give it? No, it was not.

Lord Grocott: My Lords, before we begin the Second Reading of the Prevention of Terrorism Bill, perhaps I may give noble Lords the usual information about time. We have nearly seven hours before the normal finishing of ten o'clock. Thirty-nine speakers are on the list. That leaves comfortably 10 minutes for each Back-Bench contribution in order for us to meet our target rising time. Ten minutes is not a bad offering for each individual.

Lord Falconer of Thoroton: My Lords, on behalf of my noble friend Lady Scotland of Asthal, I beg to move that this Bill be now read a second time.
	In my opening remarks I should explain precisely to your Lordships in what form the Bill has left the House of Commons. That way I hope we can avoid confusion on this point and have a properly informed Second Reading debate. Yesterday, the other place debated the Prevention of Terrorism Bill in Committee on the Floor of the other place and at Third Reading. As noble Lords are no doubt aware, my right honourable friend the Home Secretary told the other place that he would propose amendments to the Bill.
	The Home Secretary explained that he had been considering very carefully all the representations that had been made to him. He was prepared to contemplate making changes, so as to create as wide a consensus as possible across Parliament to support this Bill. The Home Secretary also said that the necessary amendments to the Bill would be tabled in time for Committee stage in this House, which will be done. The amendments will be ready for 9.30 a.m. tomorrow and will be available through the usual channels.
	This Bill needs to be seen in the context of the scale of the continuing and serious threat to the security of the United Kingdom from terrorism. A primary issue raised by this Bill is whether, in the light of the threat that this country faces, it is appropriate and necessary to introduce a process which goes beyond the powers of the normal criminal prosecution process to protect the nation against terrorism. It is the Government's view that there is such a requirement to introduce such a process and to impose restrictions on individuals where absolutely necessary. But it is also the Government's view that we should ensure that such powers are subject to stringent safeguards.
	Perhaps I may quote from simply one observer on the current position in relation to the threat. I choose the noble Lord, Lord Carlile of Berriew, a Member of this House, who has reviewed the terrorism legislation. He said:
	"I am too the independent reviewer of the working of the Terrorism Act 2000. In that capacity I carry out a programme of relevant visits, and make comparative studies of counter-terrorism legislation in the UK and elsewhere. I try to keep myself fully informed as to risk levels and the basis for them.
	Taking into account the closed material I have seen in both my reviewing roles, I have no doubt that there is an existing and unpredictable risk within the UK, and to UK assets abroad, from Al Qaeda linked terrorists. Some such terrorists are likely to be UK citizens, other foreign nationals.
	My assessment is that there is a real level of risk of attack on places of mass aggregation—airports, football stadia, music venues and the like. Evidence from AQ attacks abroad (e.g. . . . 9/11, Bali, Madrid) supports the opinion that generally they are more interested in body counts than targeting individuals. The consequence is that the burden of responsibility of the UK government to protect the ordinary citizen in almost any crowd situation is heightened by the identified risk as I have described it. Further, AQ is very different from many other terrorist groups, in that it appears to be a loose connection of associated associates albeit with shared purposes, rather than a paramilitary structure. This difference makes it more difficult to pin down exactly what AQ is at any given time, and who is or may be involved in it or under its penumbra".
	That was the assessment of an independent reviewer. It is a view shared by very many people.
	Some believe that the absence in this country of a terrorist outrage, such as 9/11, Atocha or Bali means that the terrorist threat has somehow passed us by or failed to materialise. The Government do not take that view. We take the view that there is a threat of mass casualties in this country and overseas. The threat is made worse by three particular aspects: first, the willingness of those engaged in terrorism to cause cataclysmic events, such as 9/11; secondly, the well funded nature of the terrorism; and, thirdly, the fact that people are prepared to die in the course of exercising those terrorist atrocities.
	A principal responsibility of the Government is to protect this country and everyone within it as best they can, but consistent with the rule of law and human rights obligations. The Government are determined that consistent with rule of law we will take the steps which are necessary to ensure our safety.
	The Government have made it clear repeatedly that wherever possible our priority will always be to prosecute suspected terrorists through the criminal courts. Therefore, as I said at the outset, the vital question is whether we can leave the problem that I have described to the normal police and criminal procedures or whether additional measures are necessary. We believe that we cannot leave it simply to the ordinary processes. It is the view of the Government, on the advice of the security services, that the provisions in this Bill are a necessary component of our weapons to fight terrorism.
	In that context there has been much debate about the potential benefit of the—

Lord Falconer of Thoroton: My Lords, the provisions introduced in Part 4 were introduced within a matter of weeks of 9/11. As I think everyone has learnt since, the threat comes, as the noble Lord, Lord Carlile of Berriew, says, not just from foreign nationals but also from UK nationals. One can see that from various prosecutions that have taken place.
	We need to take account of what we have learnt since September to December 2001, when we initially introduced Part 4. We also need to take account of what the Law Lords said. So, we have learnt more; we know more about the threat; and we must also comply with what the Law Lords said. That is why we are proposing change measures now and why it includes UK nationals as well as foreign nationals.
	Going back to intercept evidence, it has been said that you could resolve the problem of resorting to a process that is not the normal criminal process by allowing the admission of intercept evidence. As the Government have made clear, we consider that to introduce intercept evidence in criminal proceedings would cause great danger to the method by which we intercept the activities of criminals and also reveal informers.
	However, putting that issue to one side, we also believe that intercept as evidence will not transform results against either the most serious criminals or, as is pertinent to this case, terrorists who tend to be the most security-conscious in their use of communications. In building cases against those people, intercept provides only a part of the intelligence against individuals—sometimes a small part. Its main value is likely to continue to be to help intelligence agencies and law enforcement to deploy other techniques—for example, surveillance, eavesdropping or use of informers—in effectively obtaining other evidence which can be used in court. It does not stand alone and we can—where other supporting evidence is available—convict people now without having to admit that intercept helped in bringing them to justice.
	To revert to my first point, noble Lords will know that in the context of the Special Immigration Appeal Commission (SIAC) hearings, intercept material was available to the judge and his lay advisers who had to reach conclusions in relation to that. In relation to all the intercept material made available to the SIAC hearings, not one of it was thought to be appropriate by the judge to make available to the subject matters of those proceedings. The judge accepted the argument that to make it available to the applicants would damage either ability to use intercept material because it would reveal method or because it would reveal informers' identities.
	So, both on the basis that it would not obviate the need for processes other than criminal proceedings and because it would endanger both method and informants, I do not believe that intercept material is the solution. The Government will, as they always have done, keep under review how best to support the work of the intelligence agencies, law enforcement and the prosecution of serious criminals and terrorists. But the conclusions of the recent review did not support the contention that a lifting of the current prohibition on intercept as evidence would have a big impact on the conviction either of serious criminals or the terrorist targets that so threaten our nation.
	There have been further suggestions that a solution is to bring forward new offences under which individuals can be charged. We are exploring—my right honourable friend in another place has made this clear—whether there are gaps in current provision which might usefully be filled. However, the introduction of new offences per se would not easily overcome the evidential problems in proving the link between the individual, his activity and terrorism, for the reasons that I have already described. We must face up to the problem that whatever changes in the law one makes, whatever additional evidence one makes admissible, there will still be a gap in respect of which the criminal process will not provide the answer.
	As I have already indicated, our first response was the provisions of Part 4 of the Anti-terrorism, Crime and Security Act 2001, which the noble Lord, Lord Forsyth, referred to in his intervention. However, as I made clear in my answer to that intervention, the threat from terrorism has continued to evolve and we have learnt so much more about it since then. As I have made clear, we have accepted the Law Lords' ruling that the powers are incompatible with ECHR, and we must also act to deal with that.
	As I have said, the purpose of the Bill is to protect citizens of this country against the actions of terrorists whose aim is to launch devastating attacks upon our whole way of life. In order to do that, it is necessary, in certain circumstances, for us to place restrictions upon their activities. That is to be achieved through the imposition of the regime of control orders that I shall shortly describe.
	In approaching this very difficult area, the Government accept that we must act within the convention, as given effect in our law by the Human Rights Act. As noble and learned Lords will know, fundamental to the convention is the concept of liberty, which is protected by Article 5:
	"Everyone has the right to liberty and security of person".
	Article 5, of course, allows for an individual to be deprived of his liberty—provided it is in accordance with a procedure prescribed by law—in a variety of situations, including conviction by a competent court, restraint of persons of unsound mind, or detention pending deportation or extradition. But the convention, drafted as it was in the world of the late 1940s, contains no provision to deal with the kind of terrorist threat planned and perpetrated by groups such as Al'Qaeda. It contains a mechanism, in Article 15, for a contracting party to the convention to derogate from Article 5 in time of war or other public emergency threatening the life of the nation.
	The view of the Government is that we are clear now—as we were clear in 2001—that derogation from Article 5 is justified on the basis of the threat that we currently face. As my right honourable friend said in his Statement in the other place on 26 January, there is a continuing public emergency as a result of the threat from Al'Qaeda, its agenda and its adherents, including the different groups and linkages that make up the Al'Qaeda movement in its broadest sense.
	However, on the second criterion for derogation—the necessity for measures amounting to a restriction of liberty under Article 5—my right honourable friend has been advised by the police and security authorities that they consider that the regime of control orders established under Clause 1 will be sufficient to deal with the individuals of whom we currently know.
	Of course, circumstances may change in the future, and may change quickly. Any future derogation order will, under the procedure established under the Human Rights Act, be subject to the affirmative resolution procedure in both Houses of Parliament. But, because of the volatility of the security situation, the Government believe that it is necessary to establish now the procedures that would apply were it to be necessary for us in the future to introduce measures amounting to preventative home detention to deal with particular individuals. These are set out in Clause 2, subject to the amendments that I shall refer to in a moment.
	The non-derogating form of control orders is dealt with in Clause 1. These make possible a variety of restrictions upon the activities in which an individual may engage, some of which—as has been pointed out—may be quite onerous, some of which may not be that onerous. But—and this is a very important point—no combination of restrictions contained in an order made under Clause 1 may breach the Article 5 threshold of a deprivation of liberty. If it were to do so, the order containing it would be quashed by the court.
	Instead, the restrictions contained in Clause 1 deal with interferences to the other rights set out in the European convention, particularly Article 8, which relates to the right to respect for private and family life, and Article 11, which relates to freedom of assembly and association. Here, the drafters of the convention recognised that the rights of individuals must always be held in balance with the rights of others. All the rights set out in Articles 8 to 11 of the convention,
	"may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society",
	for a range of purposes, including the protection of the rights and freedoms of others and, in the case of Articles 8, 10 and 11, national security. In other words, in legal terms, those rights are qualified rights, subject to a test of proportionality to determine their legality.
	I have dwelt upon this distinction at some length, because it is profoundly important to the Government's approach, particularly to the way in which the roles of the Executive and the judiciary are in play in relation to control orders. To read much of what has been written, one would imagine that the Government have proposed orders of both types and that they could both be made on the whim of a government Minister without any effective oversight by the judiciary. Nothing could be further from the truth.
	In relation to Clause 1 control orders—non-derogating control orders—Clause 7 sets out the procedure. The order is quite rightly made by the Home Secretary since the choice of the particular conditions requires balancing the advice of the police and security services against the overall security situation and selecting the least intrusive or oppressive way in which the danger posed by an individual can be controlled. But the individual can appeal to the High Court, which will determine on judicial review principles whether the Home Secretary was right to suspect the individual of being involved in terrorism; whether it was necessary to make a control order; and whether each of the obligations contained in the order is justified.
	Criticisms were made last night in the other place that a judicial review-type test was too weak in these circumstances, but the Government do not agree. Concepts of reasonableness and proportionality are at the very core of the concept of judicial review. It is absolutely the appropriate yardstick against which to judge the interference that a Clause 1 non-derogating control order would make to a suspect's right under Articles 8 to 11 inclusive of the European convention.
	Different considerations apply to Clause 2 derogating control orders. Here, the right to liberty is in play. For that reason, the Government proposed—this is subject to the amendments that came later—not only that the Home Secretary should be required to take his decision on the balance of probabilities, but that there should be very rigorous judicial scrutiny of his decision in an inter-parties hearing within seven days to consider whether there were adequate grounds for the making of the order in the first place, and after that seven days hearing—this is the proposal before the commitment to amendments—there should be a full hearing at which the High Court would conduct its own hearing of each of the matters that fell to be determined by the Home Secretary.
	At that hearing, the court would place itself, in practice, in the position of the Home Secretary and decide whether to accept his order, to vary it, or to quash it. That is a very high level of judicial involvement, and one that, in many cases, would be regarded as taking the courts too far into the province of the Executive. But we believe that it is justified in the particular instance of derogating control orders, because of the importance, both under our common law and the European Convention of Human Rights, of the right to liberty.
	There was much debate on the correct method to start those proceedings. Was it right that the Home Secretary should decide and within seven days the matter should return to court? After representations were made the Home Secretary indicated yesterday that in relation to derogating control orders he would introduce a requirement that said in practice a judge had to make the order on an ex parte basis before it became effective. We accept that that is the position, and we will table amendments to that effect by 9.30 a.m. tomorrow.

Lord Lloyd of Berwick: My Lords, can the noble and learned Lord, the Lord Chancellor, think of any single instance in our history in which a judge has been given the power to deprive a citizen of his liberty without a conviction by a jury?

Lord Pilkington of Oxenford: My Lords, in contrast to the point made by the noble and learned Lord, Lord Lloyd, can the noble and learned Lord, the Lord Chancellor, tell us how many times the executive has suspended habeas corpus in the past 200 years—which, I believe, is more than people think—something which allowed the executive to decide to make those decisions? Whether it did any good has been an article of English history. We governed Ireland by coercion.

Lord Falconer of Thoroton: My Lords, in relation to derogatory powers the reason we think it necessary for the judge to intervene at the outset—that is, before the order is made—is because the order's effect is to deprive the citizen of his liberty. The effect of the non-derogating order is not to deprive the individual of his liberty; therefore the consequences on the individual are fewer. That is the distinction on which we rely. We accept that in certain circumstances the effect of a non-derogating order could be onerous for the individual. That is why the Home Secretary also made it clear that within a matter of days it is important for the matter to go before the court.
	The reason for the distinction between the two sorts of cases is the effect or impact on the citizen. Where the impact is as onerous as it is in a derogating control order, we think it right in the light of representations that have been made that the judge should make the order in the first place.
	I have indicated what the effect of the amendments and the effect of a derogating order should be. Consistent with a traditional Second Reading speech, I shall indicate briefly what the Bill contains. Clause 1 provides the basis on which the Secretary of State will be making non-derogating control orders; it also sets out the sorts of order that a non-derogating control order will contain.
	Clause 2 provides the basis for the Secretary of State making a derogating control order: a control order that amounts to a deprivation of liberty under article 5. It also sets out the significant judicial role in which there would be an automatic hearing of the merits of the case on an inter partes basis. That will remain the case even where the amendments make it clear that before the order becomes effective a judge must have ordered it on an ex parte basis.
	Clause 3 sets out the duration of control orders and the process for renewal. Clause 4 sets out the duration of derogating control orders; Clause 5 sets out the process for modification, notification and proof of control orders; Clause 6 sets out offences linked to breaches of a control order; Clause 7 sets out the judicial process for reviewing non-derogating control orders; Clause 8 sets out the judicial process for hearings concerned with modifying derogating control orders.
	Clause 9 is concerned with the jurisdiction of the court in respect of control order proceedings; Clause 10 is about the effect of the court's decisions on convictions; Clause 11 is about the process for reviewing the application of the Act; Clause 12 is concerned with interpretation of the Act; and Clause 13 provides for other supplemental provisions. The schedule to the Bill provides for proceedings in the court.
	I know that many within this Chamber will continue to ask whether we are going too far in introducing these measures. Noble Lords who have raised the uniqueness and unusualness of the process are right to do so. No government would introduce such measures unless they felt compelled to do so pursuant to the duty to protect the people of this nation. We feel compelled to do so on the basis of the threat to the nation, but we are extremely conscious that in doing so we must be consistent with the rule of law and with our obligations under the European Convention on Human Rights.
	I make three other points: first, as my right honourable friend pointed out in the other place last night, there are very many outside Parliament who would ask whether we are going far enough. The new forms of international terrorism pose a grave threat to the security of our country and other countries. We would all prefer simply to rely on criminal prosecutions before using measures which deprive people of their liberty, or interfere with other convention rights; but we believe, consistent with the responsible protection of the people in this country, that we have to strike a balance. The pressure is on us to make the judgment and I hope that we can persuade the House that we have made the right judgment.
	Secondly, because of the passing of the Human Rights Act, we have provided ourselves in government and in the courts with a template for measuring the proportionality of our response, and ensuring that the measures we take against any individual are, in the case of deprivation of liberty, strictly required by the exigencies of the security situation; or, in the case of interference with other convention rights, necessary in a democratic society in the interests of national security, or for the protection of the rights and freedoms of others.
	Some have argued that these tests were already latent in our common law, and that the Human Rights Act did nothing to advance them. We on these Benches profoundly disagree and regard the Human Rights Act and the European convention, which it incorporates, as providing a living and fundamental guarantee of our freedom under the law.
	Thirdly, the existence of the Human Rights Act and the ability it offers the courts—including the Appellate Committee of this House—to scrutinise the actions of the Government and the laws we pass against the yardstick of the European convention, provide a new and powerful guarantee of the rule of law. I therefore begin where I started: we are introducing this Bill in order to address the findings of the court and its decision in A and Others in this House.
	We are introducing measures consistent with the convention and remedying the defects of previous laws that we introduced. I hope we all accept that a regime of preventive controls of the type set out in the Bill is urgently necessary both to protect our citizens from terrorist attack and to right the wrongs identified by the House of Lords in the case to which I referred. We must have available measures to deal with the threat but we must equally put the law into a state consistent with the European Convention on Human Rights. I commend the Bill to the House.
	Moved, That the Bill be now read a second time.—(Lord Falconer of Thoroton.)

Baroness Anelay of St Johns: My Lords, we do not underestimate the difficulty of the problem facing the Home Secretary. There is indeed no difference between us on the determination to protect our public from terrorism. We know that there are no easy answers but, as I made clear last week, we believe that the Home Secretary has settled on the wrong answers, which may sacrifice essential and long-standing British principles of liberty and justice in a way that is unlikely materially to enhance the security of our people. The Government have quite properly, and laudably, put into effect measures to prevent the radicalisation of groups in our society; these laws, and the sense of injustice that they may create, could completely negate those efforts.
	It is shocking that Parliament, and especially another place, has been given so little time to scrutinise this important Bill, one that the Government themselves agree raises serious and difficult issues. Yesterday, the Home Secretary wrote to my right honourable friend, David Davis, to announce that he would table amendments in this House with regard to the derogating orders, to which the noble and learned Lord the Lord Chancellor has referred today. Yesterday I watched the debate in another place; I saw Members around the House ask the Home Secretary to agree to a short adjournment so that those amendments could be tabled and debated, but that did not happen. Another place was denied the chance to debate vital government amendments at its Committee stage, which means that the only time when another place can consider them is when the Bill returns to that House for the briefest consideration of Lords amendments. That in itself assumes that this House will pass those amendments unaltered. That was a shocking way in which to treat the elected Chamber by a Home Secretary legislating in such haste that we face the very real danger of getting the proposals in the Bill wrong.
	We have offered the Government the opportunity to have the time to consider carefully the proper way forward. Today the noble and learned Lord the Lord Chancellor has dealt with some of our proposals and dismissed them by saying that there is a gap between security and what they would provide. In Committee, we shall need an opportunity to look at the other, alternative proposals, in detail and in a manner that is constructive and—I believe—helpful to this House and to the Government.
	We said that we were willing to support the renewal of Part 4 of the Anti-terrorism, Crime and Security Act 2001, for a limited period, specifically to allow time to get right the provisions that we need today to combat terrorism. The Home Secretary has said that he does not believe that that would work—but that still begs the question, regardless of what the noble and learned Lord said today, why the Government tabled that statutory instrument just a few weeks ago.
	We are willing for a limited period to co-operate in primary legislation that limits the bail conditions that SIAC can allow, effectively guaranteeing that the control orders that the noble and learned Lord outlined today would apply to the remaining Belmarsh detainees until properly considered legislation comes into effect. That would give the Government the certainty that they are seeking for foreign nationals.
	We made other practical proposals, too, with regard to allowing intercept evidence in court. Of course, I note what the noble and learned Lord said today, but we have also referred to the fact that it would be helpful to take up the Newton committee proposals that we should put in place a procedure using an investigating judge to sift, assess and present a balanced set of all sensitive evidence, including intercept and other intelligence- based evidence, in such a way as to protect our security services but also to be fair to the defendant.
	The Government have said that they are now considering taking up the idea of introducing a new charge relating to acts preparatory to terrorism. We have always said that we would consider very positively such a proposal. So there are alternatives that can and should be considered in Committee, but for the moment the Government seem set on only one course: that of the control orders in this Bill.
	The Bill that faces us today is, of course, unamended, and we shall not see the Government's proposals until tomorrow. It gives the Home Secretary the power of imprisonment, either at home or in government-run property, as well as powers of isolation, search, electronic tagging and removal of belongings. The Home Secretary can impose those orders on anybody whom he reasonably suspects of terrorism-related activity. Such powers go far beyond any previously known British law and have never been accepted in peacetime. He could do that on the basis either of the balance of probabilities or even simple suspicion. He could do it for reasons and on evidence that may not even be known to the British subject who loses his liberty.
	We were told in the Statement last week, and it has been repeated again today, that a state of emergency exists. Last week I made it clear that when the Home Secretary tells Parliament that there is a state of emergency, we accept that statement. We also know that the Home Secretary has not sought to persuade the House that the level of that state of emergency has altered within the past 12 months. We are told, too, that the Home Secretary has been advised by the security services that they do not need as yet to use the full extent of the powers in this Bill.
	I believe that the Government argument in favour of the necessity of the whole of this Bill as an emergency measure now, pushed through Parliament in a mere two weeks, is fatally wounded by their own ready admission that they do not propose to use those measures that require derogation—at least, not just yet. We are told that they will be left to some later, unspecified date, when the Government would if still in power introduce them by order. So the very people whom the Government say need to be targeted by the Bill—those held in Belmarsh for so long—will walk out of those prison gates within the month.
	I turn now to the substance of the Government's concessions floated in the letter yesterday to my right honourable friend. As the noble and learned Lord said today, the proposal is to amend the Bill so as to provide for derogating control orders to be made by a judge in the High Court rather than, as now, by the Secretary of State. I shall be brief on this matter because my noble friend Lord Kingsland will be able to tackle it in more measured detail after we have listened properly to the debate, when he winds up at some much later time today. I am sure that he is pleased with that surprise parcel from my left hand!
	The most substantive concern about procedure in the Bill, though not my only concern, has been that a British citizen could lose his liberty on a decision of the Home Secretary, on suspicion alone and on evidence that the accused person never sees. But my concern throughout, since I heard the Statement last week, has been simple—that all of us, politicians and the media alike, have been caught in the glare of the Government's headlights, dazzled by the shock of proposals for the Home Secretary to have the power to put British citizens in detention.
	The result, I fear, is that we have all of us not spent enough time examining the other extreme proposals in the Bill—for example, on the rules on evidence, the burden of proof and the impact of so-called level control orders, orders which will also cause a significant limitation and restriction on liberty. Paragraph 4(3)(c) of the schedule means that rules of court must ensure—not may but must—that the Secretary of State is not required to reveal any evidence upon which he does not rely in proceedings for a control order. So if he has evidence that undermines his case and might tend to show that the person was not in fact engaged in terrorist activity, he can keep it secret and use in court only that evidence that appears to raise suspicion of guilt. Surely that cannot be right. Paragraph 4(1)(a) leaves rules of court to determine the burden of proof in control order proceedings. What is the excuse for avoiding putting the burden of proof in the Bill, in these important matters?
	Last week, I restricted myself to only two questions on the Statement, for once, but the noble Baroness, Lady Scotland, was even more restrictive in her response and answered just the one—the easier one.

Lord Thomas of Gresford: My Lords, if that is the present position under SIAC, why is it not in the Bill? Why is it not on the face of the Bill that full and fair disclosure must take place? As I was saying, how can these provisions be consistent with the right to a fair trial at common law, never mind about the European Convention? It is a blatant abuse of what we have known as the proper processes of justice.
	Thirdly, the Government intend to maintain in place the special advocate procedure which the Joint Committee on Human Rights has said would breach Article 6? Two special advocates have already resigned in disgust at what they have been required to do. In written evidence to the Constitutional Affairs Committee published today, nine other special advocates wrote:
	"Special Advocates have no means of knowing whether the appellant has an answer to any particular closed allegation"—
	that is, one he cannot hear—
	"except insofar as the appellant has been given the gist of the allegation and has chosen to answer it. Yet the system does not require the Secretary of State necessarily to provide even a gist of the important parts of the case against the appellants in the open case which is provided to the appellants. In these situations"—
	said these experienced special advocates—
	"the Special Advocates have no means of pursuing or deploying evidence in reply. If they put forward a positive case in response to the closed allegations, that positive case is inevitably based on conjecture . . . The inability to take instructions on the closed material fundamentally limits the extent to which the Special Advocates can play a meaningful part in any appeal".
	Yet it is on this special advocate system that the Government rely as a safeguard for the appellant who is brought before the court.
	Fourthly, there is no provision in this Bill, as there was in Section 30 of the 2001 Act, for a judicial determination of the legality of any future derogation from Article 5. The noble and learned Lord the Lord Chancellor referred to the case of A against the Secretary of State. The Judicial Committee of the House of Lords had jurisdiction in the case of A because it was specially provided for in Section 30 of the previous Act. It is not repeated in this Bill. Nor is there any provision in this Bill for the appointment of a committee of Privy Counsellors to carry out a review of the kind conducted by the Newton committee. Nor is there a sunset clause, or anything resembling a sunset clause, within the Bill.
	I summarise the basic principles: where it is impossible to prove guilt by due process, we on these Benches say that Article 5 should be maintained—its integrity should be maintained. There should be no deprivation of liberty, whether by court order or executive order. Restrictions on liberty not amounting to full deprivation may be imposed by a judge on the application of the Secretary of State in exceptional circumstances. Those circumstances must be proved to the satisfaction of the court in a contested hearing which is consistent with a fair trial. In particular, the suspect must know the nature of the allegations that he faces, and be provided with at least a summary of the evidence, as redacted under the guidance of the court. Disclosure of exculpatory material is essential.
	This Bill can probably not be put into any acceptable form by amendment. We will do our best to co-operate with the Government, but the kindest thing may be to get all those stakeholders together and invite them to drive their stakes through the heart of the Bill. With proper time, and beyond the constraints of a pending election, all parties could come to a consensus on the best way forward to protect our security in these dangerous times, and to maintain the way of life that we enjoy, which is underpinned by liberty.
	I recall the words of my late and noble friend Lord Jenkins of Hillhead in the debate on the previous Bill. He said:
	"Above all, something should be done within a framework of respect for the rule of law and an awareness of the need for those at the hinge point between the security of the state and the freedom of the individual—and no one is more at that hinge point than the Home Secretary of the day particularly when there is public clamour—to remain as calmly judicial as possible".—[Official Report, 27/11/01; col. 200]
	That is what we need: calm consideration with time to achieve a consensus that we all seek.

The Lord Bishop of Worcester: My Lords, there are many in this Chamber more qualified than I am to speak about the detail of this Bill. I speak bearing in mind the responsibilities that I associate with the privilege of speaking from these Benches. These Benches have resounded with the words of people who have remembered that the most repeated text in the scriptures is the words "fear not". They have therefore remembered that terrorism is not just a series of unacceptable, revolting, disgusting actions. It is also a system of belief that the best way to achieve your ends in life is by terrorising people through fear.
	I also speak as a person with a vivid childhood memory of my parents describing to me what it was like the day my father was interned at the beginning of the Second World War.
	I am therefore glad to speak about the privilege of living in a country with a certain spirit—"spirit" is the word I would use. The introduction by this Government of the European Convention on Human Rights into domestic law contributed massively to my sense of the good spirit of this country. The Government deserve and receive continued congratulations on having done that.
	In this debate, I am most of all concerned that this Bill does not become what it currently has every sign of becoming: a victory for the terrorists. I am concerned that we are faced with legislation which is part of a transformative process in our society, progressively undermining its spirit, to which so much effort has been directed and which has cost so much to secure.
	The events of the last week—and in this building over the last couple of days in particular—are a sign of the capacity of terrorists to undermine our capacity for calm and considered reflection. In that sense, if there are terrorists abroad in our society, they will be delighted that we are discussing this measure.
	What contributes to their victory is not the reassurances offered by the noble and learned Lord the Lord Chancellor—and which will no doubt be offered again by the noble Baroness, Lady Scotland of Asthal, when she speaks—but the rhetoric which is the public background to a Bill of this kind, to which I have referred in other debates. We hear constant use of the word "emergency", although when it is used it is also said that there is currently no need for the non-derogating orders in this Bill.
	The language of emergency always creates a certain atmosphere, and it is not the best atmosphere for reflection on the quality of your spirit as an individual or a society. We have heard it said, by people in very high places, that safety comes before civil liberties at a time like this. That is all very well when it is your safety you are thinking about, and other people's civil liberties. It is not so good when you find yourself in the position of Pastor Martin Niemöller, who found that there was nobody to protest about his civil liberties and safety, because all the people who might have protested had already been disposed of.
	I recall the comment of the Leader of the House of Commons that it is terrorists who pose the main threat to our civil liberties. That remark illustrates the muddled thinking we can be led into by constant talk of emergency. Civil liberties are only endangered by the state. There are other dangers posed by terrorists, and they are extremity serious. I do not minimise them. There is something altogether different, however, when the state begins to turn on its people, or awards itself the power to do so.
	I shall make two points before I sit down. Paragraph 9 of the joint committee's report refers to the derogations orders—that is a very good example of my point. It says that it is questionable whether it is legally possible under convention law to take the power to derogate without actually derogating when you do it.
	I am not a lawyer, and I would not begin to comment on whether that is legally possible. What I do know is that, by taking the power to derogate, you have morally already derogated. You have constituted a society in which derogation is an existential possibility. You have already changed the spirit of our society, of which I spoke. This House should consider very seriously what that means, and whether it is important that an amendment is introduced to make it clear that, if we are going to talk about derogation, we had better do so now, when we are debating the primary legislation. Our spirit as a society will already have been changed if we give the Government this power.
	My second point is about the non-derogation orders. It is constantly said that those orders do not constitute a direct attack on the liberty of the subject. As you read them individually, that is undoubtedly the case. What happens if, of the 15 possible restrictions that this Bill would allow the Home Secretary to place on an individual, say 10 of them are introduced in relation to a particular person? Shall we then, if we read these possibilities seriously, consider that person to be at liberty? Would not their life be rather like the lives of people who used to live in Iron Curtain countries? Did we call that liberty?
	In short, I see this Bill as posing serious dangers of a spiritual kind to the society in which we live. I do not deny for one moment the seriousness of what was done, what has been done, and for all I know what is being planned by people of murderous intent. We need to arm ourselves with the resources of the spirit to stay clear and rational and not to give in to terror even in this Chamber.

Lord Harris of Haringey: My Lords, I begin by declaring an interest as the member of the Metropolitan Police Authority with particular responsibility for the national and international functions of the Metropolitan Police, in particular counter-terrorism. Given the discussions that I have had and the information that I have received, I am convinced that a number of serious attacks on this country have been averted in the past two or three years as a result of the actions and work of the Metropolitan Police, the security services, and others engaged in that work.
	This Bill is necessary for a number of reasons. The first is the House of Lords judgment, which means that this issue must be revisited. Secondly, one of the issues that the judgment particularly highlighted was the distinction between overseas terrorists and those who are born in this country and are British citizens. We had the example yesterday of the conviction of the so-called "second shoe bomber". He was a home-grown British citizen found by the courts to be engaged in terrorism—an indication that that is the nature of the problem that is now faced and that the Bill needs to extend in that direction. No doubt those who are avid followers of conspiracy theories will believe that there is a coincidence between that conviction yesterday and the fact that this Bill is here today. My understanding is that the trial was not expected to reach a conclusion yesterday, and it was entirely fortuitous that that has happened.
	The main reason why this Bill is necessary, which has already been referred to by my noble and learned friend the Lord Chancellor, is that we are now dealing with a completely different order and nature of terrorism compared to five or 10 years ago; compared to the challenges faced by my noble friend Lord Merlyn-Rees in his time as Home Secretary and prior to that as Secretary of State for Northern Ireland. I highlight three factors. First, the willingness and readiness to commit suicide as part of a terrorist act, which transforms the nature of what you need to do to detect and prevent that. Secondly, there is the willingness to cause substantial if not enormous loss of life, and the willingness and readiness to use biological, chemical, or conceivably nuclear weapons. That has not been present in the past, and there is a significant change to the response that is needed by the state in seeking to protect the liberties and lives of its other citizens.
	Thirdly, perhaps the most important point is to recognise that these acts of terrorism are not about seeking to persuade our population of anything. Perhaps unlike what happened in respect of Northern Ireland, which was about creating a debate and discussion, this is not about convincing the British people of anything; it is altogether different. When some people say that we should not be passing legislation of this form in the next few days, I wonder what their response would be and how they would defend a situation in which Parliament had not taken steps to respond to the House of Lords judgment in this way.
	I shall pose a hypothesis, in which the intelligence services receive intelligence from a previously known and reliable source, but one that is vulnerable, about the specific activities of specific individuals planning some operation. Perhaps those individuals were not previously known to the intelligence services; certainly there is no existence of surveillance data or other material on how that attack will be confronted. How long is it permissible to try to maintain such individuals under surveillance rather than intervene? The balance of risk alters if you are talking about individuals who may be prepared to countenance massive loss of life. In that situation, the balance of risk is different from when someone simply wants to blow up a car.

Baroness Hayman: My Lords, I am grateful to my noble friend for giving way. Does he accept that under Section 41 of the Terrorism Act police have the ability to arrest without a warrant and then to detain for up to 14 days before charging someone against whom there is a reasonable suspicion of being a terrorist? The control orders deal with someone against whom the Home Secretary has reasonable suspicion of being a terrorist. Is the emergency situation not dealt with by the amendment that was envisaged yesterday by the Home Secretary?

Lord Harris of Haringey: My Lords, I accept that. But it requires the court to consider whether the Secretary of State has misdirected himself or herself; whether the Secretary of State has taken into account factors which should not have been taken into account; and whether the Secretary of State has taken into account all the factors which should properly have been taken into account in reaching that decision. That seems to be a safeguard to which we can all subscribe.
	Finally, the first element is that the legislation can be only part of a process of tackling terrorism. Its clear—the experience of internment in Northern Ireland demonstrates it—that if the power is used in a widespread or indiscriminate way, that will increase the alienation among those who, potentially, will become terrorists. Therefore, it must be a sparing power. The Home Secretary indicated that clearly in his speeches in another place.
	Secondly—again the indication has been given by government Ministers—prosecutions should take place wherever possible. Again, that clear commitment has been given. The third important element is that the country, the Government, Parliament, and so on, do all in their power to start to redress those senses of fundamental grievance which fuel the way in which some young people are disaffected and drawn towards the path of terrorism. That means, for example, wishing the best for the peace conference currently under way a few hundred yards from here. It means tackling some of the longstanding grievances, whether in Kashmir, Chechnya or wherever they are. I believe that the Government are committed to that. It has to be part of a wider attack on terrorism. The Bill is necessary and should receive a Second Reading.

Lord Newton of Braintree: My Lords, as the former chairman of the Newton committee, to which some reference has been made in these proceedings, perhaps I may make a couple of preliminary points. First, although I speak from these Benches I shall, as always on these matters, seek to speak in a totally non-partisan way. Secondly, I need to make this clear, especially as at least one other member of the committee is in the Chamber. I cannot speak and do not seek to speak for the committee. It has had no existence since about 18 December 2003. It has no secretariat and no continuing locus; and although I have had some informal discussion with some members of the committee I neither seek nor claim to speak on their behalf. Any view I express is my own although informed by the work and conclusions of the committee.
	I intend to speak briefly, first, because of the number of speakers; and, secondly, because I have had my say on some of these matters on a number of earlier occasions, quite apart from what was said in the report by myself and eight others. I shall not spend too much time on regrets but shall record three in the wake of the work we undertook on the committee. First, there does not appear to have been much active consideration, despite what our report said, of possible alternatives to Part 4 until after the Law Lords' ruling last November—almost a year after our report. That legal judgment was not one which we could have made or sought to make. However, no one who read our report would have been surprised by the judgment which followed a year later and we should all have been in a somewhat better position if more thought had been given earlier to an alternative to Part 4.
	My second regret—it was expressed by my colleague, the noble Baroness, Lady Hayman, when the Statement was made in this House—is that in this acutely difficult area where careful scrutiny and balance need to be the name of the game we now find ourselves, for the second time, considering legislation on an emergency timetable with all too little opportunity for that scrutiny. Quite apart from what has been said from the Front Benches on this side of the House, I have little doubt that the House would have readily agreed to a short extension of some months of the Part 4 order to allow time for legislation to be considered properly in a more normal timetable. That would have been my view.
	My third regret is perhaps linked. Everyone in all parts of the House is agreed that the best course wherever possible is a proper prosecution. I regret that not more in this package is directed to increasing the probability of successful prosecution. I know that there has been talk of continuing to keep intercept evidence under review. I shall not rehearse all those arguments. There is now a suggestion that further legislation will bring forward new offences along the lines suggested by ourselves or the noble Lord, Lord Carlile. I welcome that. But I should welcome it even more if we were considering legislation which brought all these matters together enabling us to judge a balanced package which sought to meet the different objectives. Those are my regrets.
	However, we are where we are and I do not wish to dismiss the problem which the Government seek to address. Therefore, I make three comments. First, although it is not a matter directly for the Bill, I welcome the greater efforts evidently being made in discussions with foreign governments with regard to deportation of those incarcerated currently in Belmarsh, because it is said that they cannot be deported, without involving the human rights concerns which have led to that position.
	Secondly, I remind the House of what we said in our report which for me is a quite important part of the background to this debate. At number 25 of our consolidated conclusions on page 11 we said:
	"We strongly recommend that the powers which allow foreign nationals to be detained potentially indefinitely should be replaced as a matter of urgency. New legislation should:
	"a. deal with all terrorism, whatever its origin or the nationality of its suspected perpetrators; and
	"b. not require a derogation from the European Convention on Human Rights".
	I at least should acknowledge that however imperfect and, in respect of the European convention, potentially incomplete the Home Secretary's proposals may be in some respects, they clearly represent an attempt to address those concerns. That was perhaps made inevitable by the Law Lords' judgment, which reflected the same concerns, but is nevertheless something that I ought to acknowledge.
	Thirdly, enough has already been said, both in this place and in another, to know that the proposals as announced were capable—at least—of significant further improvements to meet the concerns that we all share. Happily, the Home Secretary yesterday indicated his intention to bring forward amendments, described by the noble and learned Lord the Lord Chancellor earlier, to meet one aspect of those concerns. From what I have heard so far this afternoon, I have to say that I will take some convincing that it is not possible to go the further step in respect of the non-derogation orders, as was suggested by the noble and learned Lord, Lord Morris of Aberavon, at an earlier stage. I hope that that will be given further consideration.
	Most important of all, and in line with what I said at the beginning, I want to welcome warmly the extent to which those on all the Front Benches—certainly on these Front Benches—have placed the emphasis on constructively seeking to improve the proposals and trying to enlarge the area of agreement. I am sure that that is how we should proceed. It is certainly how I shall proceed in any contributions that I am able to make in Committee.

Lord Plant of Highfield: My Lords, I should preface my remarks by saying that I am a member of the Joint Committee on Human Rights, and therefore I share and indeed endorse the assessment of the Bill produced by that committee at great speed last week. There will be another assessment, due later this week.
	Since I shall be critical of the some of the provisions of this Bill, I want first of all to record my areas of agreement with the Government's case. First, I accept that the Bill is a genuine and, in some ways, imaginative attempt to grapple with the Belmarsh judgment. It provides a more flexible framework than Part 4 of the existing legislation. It also tries to provide a framework that would not, at least at present, require a derogation from Article 5 of the ECHR, and that supporters of Bill claim would otherwise be Convention compliant. Given that it covers both UK and foreign nationals, the Bill also overcomes the discrimination problems in Part 4 of the present Act.
	I accept that there is a persistent terrorist threat. I am also prepared to accept that contemporary terrorism is different in kind from previous forms. Religiously inspired terrorism combined with a desire for martyrdom raises unique security problems. I also agree with the Government that some policy of pre-emption may be necessary in relation to terrorist suspects. In that context, I welcome the Home Secretary's proposal in his Statement last week to bring forward legislation to cover actions engaged in the commission, instigation and preparation of terrorist acts. My only comment on this, apart from expressing support for it, is that it seems long overdue, as the noble Lord, Lord Newton, said.
	I also accept that it may not be possible in all cases to prosecute suspected terrorists in open court, although I welcome the Government's commitment to do so where possible. I would like the pressure to be kept up on the Home Office to agree to the use of intercept evidence. I accept that this may make a difference to prosecutions only in a small number of cases, but even those would be important in the overall attempt to make the anti-terrorism regime as compliant as possible with the rule of law, and with Convention rights.
	In his speech, my noble and learned friend the Lord Chancellor prayed in aid the views of the noble Lord, Lord Carlile of Berriew, on a different issue. I would like to pray him in aid as well: I approved of what he said during his interview on the wireless this morning about keeping up the pressure to get such evidence produced before the courts. I also strongly approve of the proposal of the committee chaired by the noble Lord, Lord Newton, to provide a distinctive legal space within which that evidence might be used.
	It is important that the decision to prosecute someone who is suspected of being a terrorist be taken by the Director of Public Prosecutions, and not by the Home Secretary advised by the security services and by the police. I believe it should be the DPP. It seems to me that that would make the terrorism prevention regime much more compliant with the rule of law.
	Finally—in favour of the Government's view—I accept the point made by the Home Secretary that it is the Government's and his specific duty to protect the nation's security. However, while I agree with all of those points, they do not seem to me to point wholly in the direction of the powers granted in the present Bill.
	First, I believe that while the Home Secretary has to take the lead in relation to applying for control orders, and that that approach is consistent with his obligations in respect of national security, I do not believe that I should be the Home Secretary who makes such orders rather than a judge. I say that, first of all, on separation-of-powers type of grounds, about which I have spoken before in your Lordships' House in respect of the Constitutional Reform Bill. Also I think that the European Court is not likely to find that the granting of all the types of control orders by a member of the executive will be ECHR compliant.
	There can be no objection to a judge having access to all the information on which it is proposed to issue the order, as the Bill, as it now stands before amendment, allows a judge to look at a derogation order and to reject it. That implies that he is in possession of all the facts and the evidence on which the order was first made, and in the case of non-derogation orders, there is a power to review judicially such orders.
	Given the current state of judicial review—although I realise there are people in the Chamber much more au fait with this than I am—and following the passing of the Human Rights Act, judicial review will come far closer to an assessment of the merits of the case, rather than just issues of procedural fairness, unreasonableness and legality. That is because of proportionality. Surely, the only way that a judge could review an order in terms of proportionality would be if he had access to the evidence on which the order was made.
	There is the counter-argument put by the Home Secretary in his interview with the Human Rights Joint Committee, that such an approach will be inefficient and not sensitive to time constraints. I find that a very weak argument. It cannot be beyond the capacity of the executive and the judiciary to arrive at an agreed time-limited procedure. Indeed, it looks as though that will happen via government amendments to their own Bill.
	I think that there should be judicial involvement in all control orders, whether they involve derogation or not. That is partly for the reasons that I have given already, but for two other reasons as well. The first of those—I realise that this is delicate ground and that I shall not be thanked for this—is that, at the moment, whether we like it not, we have to recognise that following the WMD fiasco, there are major problems in the country about trust in both the current state of intelligence and its interpretation by Ministers and those who advise them. There is also the well researched and attested possibility of what is usually called "group think", arising among a small group who have access to secret information. I believe that some independent view about this evidence is crucial both in terms of getting the best view of the veracity of the evidence and also to ensure that "group think" does not become established. That will be the role of the judge.
	In addition, in relations with intelligence, people have been detained in Belmarsh on orders signed by the previous Home Secretary. Those orders were based on intelligence material. When one of those people was let out under severe restrictions by SIAC, I believe I am right in saying that the then Home Secretary derided the decision as "bonkers". Now we are told that the present Home Secretary does not believe that it will be necessary, when the Bill becomes an Act, to apply for derogation orders, as at present there is no one who needs to be kept under house arrest.
	I am very pleased with the present Home Secretary's view about that, but it has to be acknowledged that it will leave people very puzzled indeed about the quality of the intelligence that led to those people being incarcerated in the first place. If that is so, I believe that it is even more reasonable to have judicial involvement in the granting of all orders, not just derogation orders, as while the non-derogating orders may strictly speaking restrict liberty rather than deprive someone of it, some of the restrictions will be quite draconian and will be based on a standard of proof that falls even below the civil level.
	While I very much welcome the Home Secretary's decision to table an amendment which will lead him to apply to the courts for a derogation order, I do not think that this goes far enough. I would certainly support amendments that would require application to the courts for all types of orders.
	On the standard of proof itself for non-derogation orders, the Home Secretary said in his evidence to the JCHR, that there was no reason of principle why the standard of proof should not be at the civil standard in terms of the balance of probability. The reasons for not accepting the civil standard were, in his view, to do entirely with practicalities.
	Given the gravity of the claim made against someone who is to be the subject of a non-derogating control order, it seems to me vital that the standard of proof should be sufficiently high to match the gravity of the claimed involvement in terrorism. Being subject to such an order may well, in effect, destroy the life and livelihood of a family. It seems to me that at the very least the civil standard of proof should prevail and that any issues of practicality ought to be sorted out so that a defensible standard of proof may be introduced. I would certainly support any amendments along those lines.
	In the case of derogation orders, which, by definition, require deprivation of liberty and derogation from Article 5 of the Convention, surely the standard of proof ought to be at the criminal standard, given that someone may be placed under house arrest indefinitely as matters stand in the Bill on the civil standard. It seems to me that that is very difficult to defend.
	I am also worried about the range of obligations that the Home Secretary can impose on people. He can impose any obligation he considers necessary for the purposes set out in Clause 1(2). The examples given in the Bill are just that—examples; they are not an exhaustive list. I would be much happier if the legislation itself set out what obligations may be imposed by control orders. Indeed, my happiness or otherwise may have nothing to do with it, as these will be orders that, because they do not imply derogation from the ECHR, may well be found incompatible with ECHR because they infringe other than Article 5 rights. I would suspect that that is very likely to happen.
	Finally, I ask the Minister a very direct question, which mirrors one put to the Home Secretary when he appeared before the Joint Committee on Human Rights; namely, whether evidence against individuals which is known to have been acquired through torture in other jurisdictions, or is likely to have been so acquired, will be disregarded. Given the low standard of proof required for non-derogation orders, it seems to me absolutely vital that such contaminated evidence which, given the circumstances I am envisaging, may not be worth the paper it is written on—even if it is written on paper—should not be used with such a low standard of proof.

Lord Giddens: My Lords, as someone who has studied terrorism intensively over the past few years, I should like to say something about what I take to be the backdrop to this debate.
	In my view discussion of terrorism in this country, and, indeed, in some European countries, has been undermined by a failure to draw a distinction between two types of terrorism. The first type of terrorism—for want of a better word—I call "old-style" terrorism. Old-style terrorism is the kind of terrorism that we have been familiar with for many years in this country. It is the terrorism of the IRA, the Basque separatists, the separatists in Sri Lanka, Kashmir and many other countries around the world. Old-style terrorism might have international connections, but it is fundamentally local in character. It is concerned with nationalism and establishing a state in nations that do not have a state.
	All episodes of terrorism are horrendous because innocent citizens loose their lives, but the level of violence involved in old-style terrorism is usually relatively low. Old-style terrorists can be negotiated with and, as we know, there have been episodes in the world where those who have been condemned as terrorists have found themselves lauded as the members of a nationalist government later in the day.
	I would submit that new-style terrorism is absolutely different from this previous form. The object of the Bill to grapple with new-style terrorism. New-style terrorism is a creation of globalisation. It is an expression of the massive acceleration of the interdependence of the world in which we now live. New-style terrorism is a child of the global age.
	I hope that it will not offend any noble Lord if I say that one can draw a certain parallel between new-style terrorist organisations such as Al'Qaeda and global non-governmental organisations. Al'Qaeda is like a malign global NGO, driven by a sense of mission. It has groups in many different countries and probably about 10,000 activists still in cells around the world affiliated to it. It is a network organisation, as is an NGO.
	There are four differences between new and old-style terrorism that are crucial to discussion of the Bill. The first is in respect of its aims. New-style terrorism has aims that are geo-political. Al'Qaeda seeks to achieve nothing short of the rolling back of modernity and the reconstruction of world society. Bin Laden wants a Caliphate that stretches all the way from Pakistan, through the Middle East and North Africa to the southern part of Spain. Such demands are not negotiable in the way that old-style terrorism was.
	The second difference is in organisational capacity. New-style terrorism, very much like NGOs, makes use of the whole panoply of modern communication systems to produce action at distance. 9/11 would have been inconceivable without the use of modern technologies: mobile phones, the Internet, computers and so forth. That gives a completely different scope to new-style terrorism in the world today.
	The third difference, as noble Lords said earlier, is ruthlessness. Bin Laden has said that he wants to kill millions of Americans. There is no limit to the destructive intent of new-style terrorism, very much in contradiction to the forms of terrorism that we have known before.
	The fourth difference is weaponry. We live in a world where, through the Internet, access to destructive weaponry is readily available to anyone who takes the time to learn the procedures involved. Destructive weaponry can be built by people with limited knowledge and facilities. We also know that a large amount of nuclear material has gone missing, a lot of it from the ex-Soviet countries. We do not know where it has gone; we do not know whether it has fallen into the hands of new-style terrorist organisations, but it may have done.
	In recent years, there has been a tendency to normalise 9/11. I read an article by the journalist William Pfaff in the Observer this weekend that said, "Well, 3,000 people died in 9/11. That is about the same number as died in the Troubles in Northern Ireland. What is the difference?". The difference is massive; the argument is completely false. 9/11 was aimed at the three main centres of American global power: economic power, political power and military power. If the two planes that hit the twin towers had brought them down more quickly, 50,000 people could have died in New York on that day. If the plane that hit the Pentagon had hit it in another area, the military capacity of the United States could have been at least temporarily paralysed.
	From the 9/11 report, we know where the fourth plane was targeted. It was targeted at either the White House or the Capitol. It was brought down only through the bravery of the passengers. Imagine what could have happened if the plane had hit the White House, largely destroyed the building and killed most of the people in it.
	Many people today say, "Well, there has not been another 9/11. It was said to us that a terrorist attack in London was inevitable. There has been no such terrorist attack. Why are you scaring us unnecessarily?". People start to call it the politics of fear and feel that the Bill is somehow driven by an illegitimate politics of fear. It is not; that argument is specious, for two reasons.
	The first, if your Lordships will forgive me, I will call the phenomenology of risk, which applies not only to risks of global terrorism but to other risks. In order to manage risk, you must scare people, because you must alert them to the reality of the risk that they face, even if that risk is what one might call a low probability but high consequence risk. You must alert people to the dangers. You must scare them to do that. But if you scare them and action is taken to minimise the risk and reduce its potential impact such that nothing happens over a certain period, people will say, "Why were you scaring us in the first place?".
	That is a generic problem for governments and other agencies trying to manage the large-scale risks that we face in the world. To me, it is interesting to notice a certain similarity between the arguments deployed by some on the liberal left in this country to play down the risks associated with new-style terrorism and the argument used by the Bush regime in the United States to deny the reality of global warming.
	The second reason why the argument about the politics of fear is specious is because of the consequences of the risks that we face from new-style global terrorism. One should not call it international terrorism, because that sounds as though the terrorists come from abroad. Global terrorism has a completely different structure and is much more menacing and threatening than the form of terrorism that existed before.
	Noble Lords will remember that, a few years ago, one of the leaders of the IRA said to the security services, "You might be right 99 per cent of the time, but if you are wrong 1 per cent of the time, we will wreak havoc in your cities". That threat is now much more severe, given the nature of the weaponry that can be deployed. A dirty bomb in London would cause havoc in the city. A dirty bomb is relatively easy to build and detonate. It would not kill a lot of people, but it would kill people and contaminate an area of the city and cause panic in whatever city it was set off in.
	Against the background of what are massively elevated risks from those that we face in the past, even 10 years ago, I do not see how anyone can cogently argue that those risks can be handled by orthodox judicial process. Of course we want to bring terrorists to trial whenever we can and, whenever we can, convict them but, as the Bill states, there are bound to be areas where we cannot directly prosecute but where there is clear and present danger and where that danger, in some circumstances, may be extreme and devastating.
	As I understand it, the core of the debate as it will unfold in the two Houses is about what should be the relationship between the government, the Home Secretary and the judiciary. Many people are saying that the judiciary, the judge, should have the prime role in taking the decision. I am not at all convinced of that argument. We are talking about risk assessment where the risk is very serious and where highly destructive consequences could ensue. It seems to me that government must assume ultimate responsibility for managing the outer edge of large-scale terrorist activity. It could not be left simply to a judicial decision.
	As the debate unfolds, I ask all noble Lords not to use the argument that they accept the reality of new-style terrorism and new risks, but that we can still sustain our traditional procedures. I do not believe that we can, therefore the Bill is crucial to the country. We must get it right because it is not fanciful to say that hundreds or thousands of UK citizens could lose their lives if we get it wrong and all of us sitting in this House would bear a certain portion of the ultimate responsibility for such a thing—supposing, God forbid, it came to pass.

Lord Mayhew of Twysden: My Lords, I am afraid that I cannot agree with the conclusion of the noble Lord, Lord Giddens, who has just sat down. I hope briefly to explain why. It is important to remember that throughout our modern history what might be called our sea defences against unfair executive power have been serially attacked by the threat, at any rate, of erosion.
	I do not think that that is an unjust metaphor: the executive, like the sea, will always come back. The executive has always had seductive and plausible reasons for each attempted inroad. Sometimes it has made a breach. We are all familiar with the famous case of Liversidge v Anderson in the pressures of the last war when the majority of the Appellate Committee in this House effectively and regrettably held that, with Cicero, amid the clash of arms the laws are silent.
	That decision and the criticism that it engendered gave rise to the process of judicial review—the ingenious and wonderful creation of the independent judiciary, which has been developed to this day. But its true character needs to be understood. I very much agree with the noble Lord, Lord Plant, who said that whatever is provided for in this Bill, even as it is now proposed to be amended, it is not judicial review.
	In the case of this Bill, we are told by the Government that the danger is presented by international terrorism. I entirely take the point made by the noble Lord, Lord Giddens, about the new character that it presents to us. The dangers are such that procedures quite contrary to our principles of liberty and justice are demanded, if the rights of the greater number are to be preserved. They tell us that the heads of the various agencies that protect us are of one mind—those powers are needed.
	I do not doubt that we are told that by the heads of the agencies, which needs, of course, to be given great weight. But should it be given decisive weight, as I rather think that the Government are giving it? I think not. It is no disrespect to those very admirable agencies, including the police, to say that there will be a natural tendency for them to wish to make their difficult and often dangerous jobs easier and less dangerous, as they suppose, and the lives of their opponents more difficult. Again, the speech made by the noble Lord, Lord Plant, like many others, needs to be read with care in that connection.
	Those people are at the sharp end, and very glad of them we should be and are, but provisions that permit such wide incursions into liberty as these need to be examined by other minds as well, not least because the provisions could very well enhance, albeit at one remove, the dangers that we are told we face. Here I agree, again, with the right reverend Prelate the Bishop of Worcester.
	For example, we resorted in the 1970s, as has often been mentioned today, to detention in Northern Ireland. The arguments for it were respectable and not unlike those that we hear today. But when implemented—I know that they were implemented incompetently—its character gave great comfort and assistance to our enemies and their friends. It was very wisely abandoned by the noble Lord, Lord Merlyn-Rees, the subsequent Secretary of State.
	When this Bill comes under dispassionate examination, one is almost blinded by warning signals. Time is very tight, so I commend to the Government and your Lordships only the speech made in another place by Mrs Barbara Follett, the Labour Member for Stevenage, at Second Reading. She said in another place that the provisions of this Bill for restrictions even under a non-derogation order,
	"do bear an extraordinary resemblance",—[Official Report, Commons, 23/2/05; col. 401.]
	to the pass laws in apartheid South Africa. That is a pretty unsavoury comparator.
	Mrs Follett ought to know for she lived in South Africa under the apartheid regime. She said that the General Law Amendment Act, on introduction in 1963, allowed people to be detained without trial, initially for 12 days. Two years later, it had been extended to 90 days. A bit later, it was extended to 180 days. Finally, it became indefinite, by amendment. That is what tends to happen when a wedge is driven by the executive—any executive—into the principle of liberty. The noble and gallant Lord, Lord Craig of Radley, asked, very pertinently, who will be brave enough to say that we no longer need it. That is an important consideration.
	Mrs Follett went on to say that in 1971 her first husband, who advocated votes for the blacks, was, without trial, put under an instrument called, by chance, a "control order" because the state believed that he was a threat to its security. She said that he probably was. It provided for his house arrest and it prevented him working and earning his living for five years. His experience of that legislation ended shortly before the expiry of that period when, by whatever person and for whatever reason, he was shot dead in the presence of his daughters.
	It is fair to add that Mrs Follett said that she recognised the case for a control order, but that the Home Secretary should get a judge to implement the orders in the Bill and to consider how far to use intelligence evidence in court. Whatever the Home Secretary's intelligence about adding to the judicial jurisdiction, he does not propose to do that, so far, at any rate.
	I have a few concluding points to make briefly about those matters. First, no matter that a judge has a role in derogating orders, the procedure embeds an undemocratic principle in our law—as it happens, another phrase of Mrs Follett's. The judge has to consider whether the matters relied on by the Secretary of State to justify the making of his order were capable, if not disproved, of constituting reasonable grounds for him to make the order he did: look at Clause 2(2). But the controlled person—I might almost call him the victim—is not allowed to disprove them because matters are not fully disclosed to him. The facts are not disclosed to him, and it is that which is so unfair.
	Unless upon full deliberation we can find another way, I consider that this is no way for us to proceed. This is not judicial review and, in any event, it is a most undesirable role for judges, since it will properly be seen as quasi-executive, at least, in its character.
	At least one component of another way is already available: that is, to make intercept evidence admissible in court. The noble and learned Lord the Lord Chancellor said that there would only be a tiny number of cases in which that would have any effect. I do not regard a tiny number of cases as fit to be ignored when the liberty of the individual is concerned, so let us look at that. In any event, I think that the origin of the exclusion of intercept evidence was a desire, many years ago, to palliate the sense, in some fastidious quarters, that eavesdropping was always bad form. We can no longer afford such delicacy.
	There may be other ways, but there may not be. In that case, let us proceed accordingly. But there may be other ways in which, upon full deliberation, we can, by agreement, hit upon some acceptable, fair judicial procedure to build in to the protection of the state against current dangers. But full deliberation is precisely what we have been denied, giving rise to the astonishing scenes in another place last night. The excuses for not taking power to renew, for a few months, Part 4 of the ATCS Act 2001 do not stand up for a minute. I hope that the noble Baroness, Lady Scotland, will recite them when she winds up.
	The ECHR provides for a reasonable time to be available for a state to get its house in order after an adverse ruling and that is the course that the Government should take in maintaining the sea walls. They should stop trying to ram through Parliament a bad law that will give rise to worse cases. In the mean time, I say to the noble Lord who raised the question that I shall resolutely bear my share of any responsibility for any attack—God forbid—that may occur.

Lord Forsyth of Drumlean: My Lords, it is a pleasure to follow the noble Lord. I agree with much of what he had to say, particularly in respect of the need to look again at the whole question of using intercept as admissible evidence in cases of the kind that we are considering.
	Of course, I accept that there is a special and new threat, not least because we are dealing with people who are prepared to sacrifice their own lives in pursuing their dreadful cause. I put my name down to speak in this debate knowing that there would be a large number of speakers who knew far more than I about this subject—although as a former Minister I was responsible for intercept approvals both north and south of the border—because I am outraged at the way in which the Executive is handling this matter. The performance in the House of Commons yesterday and last week was quite inexcusable. I refer to one Labour Member's comments on this Bill during its Second Reading—a Labour Member who is probably as far to the other side of the political spectrum from me as it is possible to get. He said:
	"As we move towards a system of justice that found favour with the South African Government at the time of apartheid and which parallels Burmese justice today . . . the unthinkable, the unimaginable is happening here".
	I do not go quite so far as Mr Brian Sedgemore, making his last speech after a very long career in the House of Commons, but I think that the Government ought to take account of the anger that exists in the other place at the way this matter has been handled. There were 165 amendments yesterday and six hours in which to discuss the whole Bill. That is hardly enough time to read the amendments, far less to discuss them. It is a contempt of Parliament to treat it in this way on a matter of such seriousness. Weak governments are created by weak Parliaments. The same Member of Parliament also said:
	"Liberty, without which democracy has no meaning, and the rule of law, without which state power cannot be contained, look to Parliament for their protection, but this Parliament, sad to say, is failing the nation badly".—[Official Report, 23/2/05; col. 365]
	The Government, with their huge majority in the other place, saw it reduced to 14 last night. On the "Today" programme, I hear that Ministers are going to make no further concessions. So we are all wasting our time making speeches in this debate, because Ministers have already decided that they are not going to make any further concessions.
	The speed of consideration leaves me mystified. As the noble and learned Lord, Lord Ackner, observed: what is the hurry? Why is there a rush? What is driving this process? Why are they only allowed one day to consider all the remaining stages beyond Second Reading in the other place? Why is this House given two days to do so? Why do we have a Home Secretary who, faced with serious and well-intentioned points, responds by saying that he is fed up with being "patronised by lawyers"?
	There is another aspect to this. I hesitate to mention it because this House is broadly non-partisan, but there have been flavours of it today. One Member of this House, a Labour Peer who shall remain nameless, said to me "If your lot vote against this and something happens, we are going to blame you". That is the most disgraceful attitude. It is a partisanship which should have no part in measures which concern terrorism and the protection of our country.
	I was brought up to believe that when Ministers wish to bring in highly sensitive legislation of this kind, the right thing to do was summon the party leaders under Privy Council terms and talk to them about the issues, finding a way forward that commanded support. It is not to taunt them at Prime Minister's Questions and in other arenas about who is softer, who is harder, who is more committed to defending our country against these very real threats. I agree with the noble Lord, Lord Brennan, who said that this should not be a matter of partisanship, but one for which a consensus and a way forward are sought.
	I genuinely have a problem. I have read the Bill, I have read the material, and I am finding it very difficult to understand not just the speed, but also the logic of the position. The Anti-terrorism, Crime and Security Act 2001 set up the committee chaired by my noble friend Lord Newton of Braintree. He recommended that powers to detain foreign nationals be replaced as a matter of urgency, and suggested that we proceed by criminal prosecution instead. That was debated in this House in March 2004.
	The joint parliamentary committee agreed with the committee of my noble friend Lord Newton of Braintree, and said that the experience of other countries suggests it must be possible to deal with this by criminal prosecution. That advice was rejected by the Government. The Lords judgment came along and, as I understand it, rejected Part 4, arguing that it was discriminatory in that it only applied to foreign nationals. Most importantly, the second part of that judgment was that the provisions in the legislation were not a proportionate response to the threat we faced.
	The Government's response at the time was that detainees would continue to be detained until Parliament decided whether or how to amend the law. If this farce in which we are now engaged is Parliament deciding how to amend the law, then I am a Dutchman.
	We are now told that the nature of the threat is such that it is necessary to extend these provisions beyond those that were previously only thought necessary for foreign nationals. Is it a coincidence that, following the Lords judgment—the noble and learned Lord the Lord Chancellor gave me an answer in response to my intervention today—the Government suddenly realised that British citizens represented a threat? Or are we not being given a straight tale here?
	The Government have also said that they could not possibly just extend the existing powers. Am I deceiving myself in seeing on an Order Paper that the Government tabled a statutory instrument in the other place to continue the powers for a further nine months? Indeed, they published an explanatory memorandum. What changed the Government's minds? Why, if they were prepared to table the statutory instrument, is that not possible now? Has the timing of the general election got something to do with this, I wonder? It is hard to reconcile these facts without coming to a nasty conclusion.
	We now have a measure which seeks to deprive people of liberty without knowing who made the allegations or, indeed, what the allegations are. Innocence or guilt should be a matter for the courts to determine, not for the Secretary of State. I am mystified by the distinction made by the Home Secretary between derogating and non-derogating orders. Taking powers to stop someone pursuing their livelihood, to stop them meeting their friends, making their homes open to search at any time—these are dilutions and deprivations of liberty.
	The Government would be in a much stronger position if we had not had the experience of the dossier on Iraq, or if we had not been told that the 17 people detained in Belmarsh were a threat. Of the 17 people held under Part 4, four have been released—two on the grounds of insufficient evidence—and the control orders, we are told, will not apply to them anyway. So why were they detained for three years? Why are these control orders necessary if they are not going to be applied?
	The noble and learned Lord, Lord Hoffman, said something in his judgment that was so strong that I had to read it twice. He said:
	"The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these".
	Any Minister reading that, or the comments made by their colleagues in the House of Commons, should think very carefully.
	I remember the noble Baroness, Lady Kennedy of The Shaws, in one of our debates when we were seeking rather more modest encroachments on civil liberties, reminding us that when tyranny comes it does not always come wearing jackboots. It can come in an Armani suit, she said.
	I say to the Government—and I give them honest, impartial advice—if they seriously want to tackle terrorism in this country, let them withdraw this Bill. Let them seek agreement from all parties on the way forward. Let them establish a consensus, and let them put the interests of the country first.

Lord Phillips of Sudbury: My Lords, we all accept that this is a hugely difficult measure with which to contend. When Mr Blair says that the first human right is the right to one's physical security, one must admit that he would probably win a public opinion poll on that, as the noble Lord, Lord Young of Norwood Green, correctly said. What matters is how we act on that assertion. Public reaction in terms of fear is not always—and not in this case—a primary consideration which should engage us.
	Occasionally, it is the job of parliamentarians to legislate in a way which will, temporarily at least, displease the public. I cannot resist quoting from John Stuart Mill's 1959 essay "On Liberty", in which he said:
	"Let us suppose, therefore, that the government is entirely at one with the people, and never thinks of exerting any power of coercion unless in agreement with what it conceives to be their voice. But I deny the right of the people to exercise such coercion, either by themselves or by their government. The power itself is illegitimate".
	Nothing that we do or say or legislate can assure the public of safety in relation to the sort of terrorism that we are dealing with here. There is no sure answer.
	I want to concentrate on hearts and minds, and the impact that this Bill will have—not just on terrorists or would-be terrorists, but on would-be informers. It is worth remembering the situation in Northern Ireland at the height of the IRA crisis. Then, the IRA was protected by its community. Compare that with the events of this week, with many Catholics in Northern Ireland rising up against the IRA's conduct, now absolutely unacceptable. What has changed? Their longstanding grievances have largely been attended to.
	As so many in this House said in our great Iraq debate before we went to war, terrorism is rooted in sentiment. In shaping sentiment, the attitudes and actions of the state are apt to be formative, or at least highly influential, with those inclined to terrorism or its support. Thus I believe that framing anti-terrorist laws in a way that is manifestly fair, which minimises wrongful detention, which minimises martyrs and which belies extremist myths is likely to win hearts and minds.
	In any event, the terrorist mentality is often fluid and relative; it ebbs and flows. Whether someone actually gets to the point of doing something dreadful depends on many influences. I get the impression from the shoe bomber case reported this week that the young man concerned could have been pushed into more decisiveness and could have acted much earlier, with devastating consequences. Who knows what held him back? It may well have been the protestations of someone in his community or family whom he was close to, who in turn was benignly influenced by their perception of how we, the host community, are dealing with these intractable problems. Who knows how many violent acts have been indirectly frustrated by our libertarian ethos?
	What my noble friends Lord Thomas of Gresford and Lord Goodhart and others have said about the powers to make non-derogating control orders is plum right. If one were to take the worst case, in libertarian terms, of Clause 1—and that is never a bad thing to do—one might find this with regard to freedom of speech, which has not been mentioned. First, the rights on the part of the Secretary of State are couched in a way that is more appropriate for civil law than criminal law, yet the nature of the powers, unlimited as they are—as my noble friend Lord Goodhart mentioned—is certainly criminal in impact and feel.
	Sir Nigel Rodley, the distinguished human rights lawyer and chairman of the Human Rights Centre at Essex University, pointed out that the Strasbourg court, and probably our own courts, will so find on the basis of what is called "autonomous meaning". Where will the Bill stand then? For the Secretary of State can act on suspicion; he can act in anticipation of any terrorist activity; he can act without evidence of criminal intent, and worse, there need be no terrorist activity at all for the full force of a control order to be invoked. It is sufficient that there is, or is the prospect of, "terrorism-related activity". That is defined in Clause 1(8) in the broadest possible terms and catches, for example, conduct that gives encouragement to or facilitates acts of terrorism. As far as I can see, that conduct need not be knowing or intentional in giving such encouragement or facilitation. I refer to what the noble Lord, Lord Brennan, said.
	Finally, that encouragement need not be of a specific act of terrorism, but of terrorism generally. The noble and learned Lord, Lord Mayhew, mentioned Liversidge v Anderson 1941. Those powers are considerably wider than even the Defence (General) Regulations 1939, which was the legislation around which that case revolved. The writings of a journalist who was passionately critical of, for example, government policy vis-à-vis the Iraq invasion and the Middle East could be stamped on under the Bill. He or she would thereby on one view be constrained under Clause 1(3)(d) in that their association and communications could be restricted, and under Clause 1(3)(c) in that their work and occupation or business could be restricted. It may be argued that a judge would never agree, or that the Human Rights Act or the European Convention would come to the aid of the journalist concerned, but the rights of judges under this Bill are strictly constrained to judicial review limits and by the provisions that I have referred to and others. What is more, Article 10 of the European Convention on Human Rights is notoriously difficult to interpret, given that it expressly allows without derogation restrictions on freedom of expression,
	"in the interests of national security or public safety".
	Some of your Lordships may remember the case of Purcell in 1989, where the Government were upheld in preventing TV interviews with members of the IRA and Sinn Fein, and the subsequent case where Gerry Adams failed before the Strasbourg court to get the order lifted that prevented him taking his seat in the House of Commons. I repeat that we are all groping in seeking a balance between public safety and individual liberty. For the reasons that I have advanced I, and many of your Lordships who have spoken, err on the side of manifest fairness and proportionality. That is the best long-term defence against the evils with which we are contending.
	I agree with the famous judgment of Lord Atkin in the Liversidge v Anderson case. That was based on the 1939 regulations, where noble Lords will be interested to know that there was a requirement for a monthly report to Parliament for the exercise by the Home Secretary of his rights under the regulations. I read from the famous Section 18B of the regulations, about the chairman of the advisory committee that reviewed orders made by the Home Secretary:
	"The chairman (has) to inform the objector of the grounds on which the order has been made against him and to furnish him with such particulars as are in the opinion of the chairman sufficient to enable him to present his case".
	We were rather more forward then than we are now. Lord Atkin closed with those famous words:
	"In England amidst the clash of arms the laws are not silent".
	This was in the year in which this very Parliament was bombed by the Luftwaffe.
	"They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which, on recent authority, we are now fighting, that the judges are no respecters of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law".
	And so say I.

Baroness Goudie: My Lords, an appalling terrorist outrage happens. Inevitably the question is asked, "Could the government have done more to prevent it?". The answer is "Yes, if the government had reasonable grounds for suspicion and had acted on those suspicions sufficiently effectively".
	The approach that advocates prosecution or nothing is fundamentally flawed in the case of terrorism, or potential terrorism. Because of the nature of those crimes and of the individuals involved in those crimes, a precautionary strategy cannot be sensibly so narrowly confined. There are a number of reasons why prosecutions on their own are inadequate. First, they relate only to what has already happened. Secondly, they relate only to what can be proved to a very high standard and beyond reasonable doubt. Thirdly, they relate to what can be proved by admissible evidence. Fourthly, evidence often cannot be used because of a legitimate fear of endangering sources and techniques.
	There is another reason. An international terrorist now present in our country may have previously committed terrorist offences elsewhere in the world. It will be argued that our courts lack jurisdiction to bring that person to trial in this country. In this situation, the government are placed in a bind. They have every justification for deportation or for refusal of admission, but every country in the world, save one, refuses to accept the individual concerned. For the same good reasons, we do not want him. The one country that will have him is his country of origin. Indeed, it may positively want him for serious crimes that he has allegedly committed there. We cannot send him back because of doubts over the nature of the regime.
	That may be reason for not extraditing or deporting him, but it is not a reason for allowing him to remain here and be able to escape any sanction, even if the evidence could be made available to us, for example with the assistance of video links. Even if our courts and jurisdiction try him, it would often be impossible to obtain the necessary evidence from overseas. The practicalities of prosecution cannot be ignored. The case for having precautionary measures that fall short of prosecution and punishment, but are subject to judicial review, is overwhelming. The Bill has an entirely legitimate and balanced aim. Those who seek to obstruct it should have open in front of them the most recent report of the independent reviewer, the noble Lord, Lord Carlile of Berriew, QC, especially at paragraphs 57 and 59, and ask themselves the following questions. First, do they accept that in each of the cases he has seen over the past three years it was clear that the person was properly suspected, on strong grounds, of being a member or supporter of, or assisting, an international terrorist group? I do. Secondly, do they accept that there remain in the United Kingdom individuals and groups who pose at present a real threat to the safety of the public here and abroad? I do. Thirdly, do they accept that the public safety context includes the unavoidable premise that it may be difficult to predict likely methods or targets of terrorist attacks? I do. Fourthly, do they accept that the risk of chemical or biological attack is completely realistic and the consequences potentially horrible? I do. Fifthly, do they accept that in this extremely dangerous context in which new groups can appear suddenly, public protection against international terrorism must be flexible? I do.
	If anyone disputes any of those conclusions of the independent reviewer, we shall be interested to learn the basis on which they do so. If they accept the conclusions, they must then ask themselves the question whether prosecution alone, with all its limitations, is the adequate response. The answer to that question is manifestly no.
	Other controls are needed and they are needed now. That is why I say that the approach which advocates prosecution or nothing is fundamentally flawed. I believe that it is time to pay attention to the threats and dangers we are facing.

Lord Kalms: My Lords, a government with good intent but with bad or incompetent ideas is a dangerous combination. Can there be a better illustration than this Prevention of Terrorism Bill? The alarm bells are ringing. This Bill is all about law, but it is far too important to leave exclusively to lawyers. It is about the judiciary, but the judges must not write the script. It is about the process of policing, yet the authority granted the powers of the Act must itself be closely challenged, as must the advice of the intelligence organisations.
	Neither must this Bill be allowed to be the exclusive prerogative of politicians. It must pass the citizens' test with its threats to remove and challenge their fundamental and historical rights. This Bill is about the inalienable rights of all citizens to decide how the threat of terrorism is determined. This is the moment each of us must consider in depth the options being presented.
	The reasons behind the Bill are well stated, but the solutions are the prescription of the Government and they have strayed far into uncharted territory. This Bill, this reduction in human rights, this rejection of habeas corpus, this intrusion into the very basic values we all cherish is not the prerogative of a three-line Whip. Neither is it the prerogative of a new Home Secretary, clearly floundering in his new powers. But, above all, it is not to be the gift of a Prime Minister whose judgment system has already led us into other horrendously dangerous territory.
	It is a sad and regretful comment. One wants to stand behind a Prime Minister, of whatever party, in a time of national anxiety, but today this is not possible. The issue of terrorism is undoubtedly haunting. It is a growing nightmare; one that will probably not go away for decades and one which will overwhelm the body politic antibodies that, up to now, seemed set to secure our safety.
	This is not the time or occasion to look into the history of terrorism or the causes. We are focused today on attempting to deal with the realities, and the proposal by the Government to take upon themselves such unprecedented powers where the cure can be, in a philosophical sense, as bad, indeed worse, than the disease.
	In the area of ethics one often faces complex dilemmas between choices, where the logic of either case can be strong and robust, and finding a way between two powerful competing arguments is intellectually stretching. Sometimes in a balanced argument where the pros and cons are equally unacceptable, the solution of the argument lies in deciding on a choice of the greater good versus the lesser evil. In other words, one is aware of the consequences of the selected decision not being perfect but perhaps being better than the alternative, and certainly better than being inactive.
	That is the dilemma that we face. But it seems that by using the criterion of the greater good versus the lesser evil, we have inverted the argument. I argue and submit that the retention of the fundamental rights in the process of habeas corpus, the freedom of individuals not to be incarcerated without the full flow of justice, is the greater good versus the lesser evil of terrorism. If one starts from that premise one then has to tackle the lesser evil and give it an adequate description. Terrorism is pure evil. It is unadulterated evil. It is evil from every angle and perspective. Yet it is only in relation to the consequences of subverting habeas corpus that we can put an alternative argument on its feet.
	Many of us in our careers have faced complex problems—not, of course, of this nature and magnitude but in their own way complex—and solutions had to be found. The process starts in identifying robust and philosophical markers and pinpointing the existing solid foundations within the complex argument: the issues that are inviolable and the lines that cannot be crossed. The scope can be wide but it is never unlimited.
	It is in this area where I feel that the Government have not kept within any acceptable criteria. The Government have not restricted their thinking within the bounds of possibility and acceptability. The argument must be faced that to destroy terrorism or to contain it cannot equate to vitiating habeas corpus and the basic rights that exist in this country. Reading the Bill and listening intently to the debate in the other place, it was quite clear that the Government, their advisers and their legal drafters have merely followed a process of analysis, seemingly succumbed to professional pressures, and ignored the outcome and its dangerous precedents.
	I am without the skills of a lawyer, a judge and a policeman, yet within my own skill range I firmly believe that a solution is totally within our grasp without for one moment ignoring the crisis that the Home Secretary and the Government tell us we have to face. Of course, the police must have full and fast powers. Equally, the Home Secretary must have powerful authority. Of course, the process of finding and restraining terrorists must be as broad as is needed. But within these criteria there must be a glass ceiling—a limitation—and it seems to me as an objective citizen that this can and must be achieved without draconian or unacceptable levels of constitutional change.
	There have been many suggestions put forward which will solve this issue. Tonight the noble Lord, Lord Brennan, set a trend with some excellent thoughts and yet for political dogma they are being rejected. Obstinacy seems to be an inherent feature of the Prime Minister's political philosophy. It is said that the Home Secretary is a democrat and that the Bill is safe in his hands. Yet, listening to him propounding this Bill, it is impossible to identify or find evidence of his personal philosophy. The Bill attacks the very foundation of the liberal western civilisation that makes life worth living and provides the basic safeguards that can so easily be subsumed in a world of violence, dictatorship and political autocracy.
	We can all remember the nightmare of dictatorships, the long suspension of human rights, which happen even now in many countries, yet here, in this very core country, where society has put law above all, human rights above all other rights, personal freedom exceeding all other restraints, we are introducing a Bill that challenges and indeed suspends those fundamental rights.
	This is not a battle between this place and the other place. This is not a political argument. This is not an economic argument. This is not a social argument. This is only a defence of the most sacred values we have. Here we have a new man in office, who is instantly taking upon himself supreme powers. Who knows where that may lead?
	Glancing back over the history of the previous Home Secretary: here was a man who when he took office we believed was gifted with an enlightened attitude. Yet he ended his appointment with an outlook far remote from what we envisaged. He was of course the progenitor of this Bill.
	This Bill could be renamed "The Slippery Slope Bill". It is true that we have had on occasions legislation temporarily suspending habeas corpus for short and specific needs, but this Bill goes dramatically past anything ever previously conceived and opens the door to a nightmare of possibilities. It can only be argued with the safe knowledge that with single-minded focus we can find equally effective methods of dealing with terrorism without destroying all that we hold valuable.
	The state has enormous powers, vast authority and full support of the citizens to defy the evil of terrorism, without digging down into our own very foundations and removing a cornerstone of our civilised edifice.
	There is a price to pay for eternal vigilance, but where the law ends, tyranny begins.

Lord Garden: My Lords, many noble Lords have today spoken in defence of the rule of law, due process and the protection of individual liberties. They are much better qualified than me to talk about the legal aspects of the Bill, but I support them from the bottom of my heart as your Lordships try to put the lid back on these moves towards a more repressive and authoritarian state.
	I want to focus on a different aspect, which is to question whether the proposals in the Bill represent a safe and sensible strategy to reduce the overall threat from terrorism. I have read with great interest the background briefing papers provided by the Government. Paper 1 of that background briefing explains why the current threat from international terrorism is different. Several noble Lords have made that case. I agree that the global reach, the techniques, the ambition and the lack of restraint, including the willingness to die, marks this as a particularly difficult form of terrorism to counter.
	However, to complete the picture, we should also examine those aspects of the current threat that have parallels with previous challenges that we have had to meet. Terrorism as a technique was not invented by Osama bin Laden. The world has a long history of different threats from terrorism: some severe, some constrained, some state-sponsored, some from fanatical cults. Different governments at different times have tried various strategies to reduce the immediate threat—which is what we have been talking about today—to their citizens but at the same time to address the long-term elimination of the terrorist organisation, which we have not talked about very much. It is a two-pronged approach and one attack on the immediate threat can have an adverse effect of the long-term strategy.
	All terrorist organisations need supporters and recruits. One might argue that that is particularly the case for those that expect their adherents to die during this single act of terror. They need to replenish and have new recruits.
	Past terrorist leaders operating in regional terror campaigns have realised that to stimulate those recruits and get general support in the population, they must stimulate repressive measures by the authorities. All the terrorists textbooks tell you that. Che Guevara, who also hoped to destroy the United States and expected his people to die for the cause, understood that. He wrote of the need to engender,
	"intransigent hatred for the enemy that takes one beyond the natural limitations of the human being".
	Che Guevara saw it as impossible to recruit to the cause where a democratic government maintained the appearance of constitutional legality. He needed repression. Repression and the sense of injustice foster support both in proactive recruiting and also among the general section of the population that becomes repressed.
	Closer to home, several noble Lords have talked with knowledge of the experience of internment in Northern Ireland in the early 1970s. We learnt a lesson there: we could go for the apparent short-term gain, the tactical advantage, that could lead us to long-term strategic failure. It is no good suggesting that we will not make the same mistakes again: those of arresting innocent people on inadequate intelligence. Support for the terrorist groups grows through every injustice. There is no lack of examples around the world of how arbitrary detention has made the terrorist problem more intractable.
	The question is whether the Al'Qaeda network is so different that the lessons of the past no longer apply. Here, I look to the analysis of Jason Burke in his book on Al'Qaeda. He knows the movement well from looking at it throughout the world. He concludes:
	"Modern Islamic terrorists are made, not born".
	He describes the process by which they are made as having three stages. The first is the feeling that something is wrong and needs to be set right. It can be a perceived or real injustice. The second is a feeling that the problem cannot be solved by the society's political or legal framework. The third stage is the ideological change to accepting the use of violence. He argues that if we are to divert recruits from Al'Qaeda terrorism, we need to break into that three-stage process.
	So the counter-terrorism techniques of the past are still relevant to the threat that we face today. If we remove the democratic safeguards of the legal process, we risk the growing perception of injustice. Do any of us doubt who will be the targets for the Home Secretary's control orders? It will be the Muslim community in Britain, whether they be foreigners or UK nationals. How will that play among our Muslim communities, their families and friends? Do we see the recruiting call for terrorists increasing or decreasing? How will the measures play further afield, around the world? If anyone doubts that the world is looking at us as we do this, I shall read to the House an e-mail that I received from a very unlikely source this week. A Right-wing American journalist, a former Republican senior official, wrote to me and said:
	"This goes light years beyond what we did in the Patriot Act. Are you guys tearing up Magna Carta?".
	If that is what the American Right thinks, it is easy to imagine how this plays in Osama bin Laden's recruiting campaign.
	I therefore fear that the long-term strategic effect of suspension of due legal process will be to increase terrorist recruiting in the UK and abroad. However, I need also to address the question of whether the near-term threat is so great that such oppressive measures must be introduced despite their long-term disadvantages, that the need for immediate protection overrides the long-term disadvantage. In doing that, I note that we did not think that this kind of legislation was necessary throughout the four decades when we were threatened by the Soviet Union, with the real possibility that we would extinguish the life of this nation and that millions of people would be annihilated. We did not seem to need this kind of legislation then. Nor did we need it when the Prime Minister of the day might have been killed in the bombing in Brighton. We have managed without it until now.
	We can all construct scenarios that terrify: the suicide bomber coupled with biological, chemical or nuclear capabilities. We have to ask whether the Bill would reduce that threat perceptibly. Can we construct appropriate judicial processes which are soundly based and address my long-term strategic concerns?
	The experience of the past shows the imperfection of using untested intelligence as the basis for detention. Many noble Lords have referred to the intelligence about weapons of mass destruction in Iraq as an indicator that, even when we have a narrow target, we cannot be sure of getting the right intelligence. It appears likely that some of the intelligence that would be used in the new procedures would have been gained in other countries using procedures that, under any definition, amount to torture. Such information is notoriously unreliable. People who are being tortured will say anything and implicate anybody to stop the pain. We should add to that the desire of any terror organisation to increase repression, to make us more and more frightened, and to force us to take measures. We should imagine misinformation as the tool of the terrorist organisation; feeding it into intelligence and informing on innocent parties to get them detained would become the normal process. We will find an increasing number of people detained under the orders, all with an increasing sense of justice. Their friends and families also will have that sense of injustice. We abandon due process at our peril.
	It is the responsibility of any government to protect their citizens, but that is the protection of their way of life. We have been extraordinarily fortunate in these islands to have enjoyed liberty for so long, but in order for us to enjoy that liberty, our predecessors have had to be prepared to give their lives in the defence of liberty. We cannot be the generation that says that our lives are so important that we will trade liberty for survival.
	In their background briefing, the Government state that the aim of Al'Qaeda is,
	"to destroy religious toleration, the rule of law and democratic freedoms".
	If we pass this legislation as written, we shall be doing the terrorists' work for them.

Lord Truscott: My Lords, I shall keep my speech relatively short—first, because I do not want to repeat earlier points and, secondly and more importantly, I have a terrible cold.
	Your Lordships are right to be concerned with civil liberties and the rights of citizens vis-à-vis the executive. For years, I have closely studied the Soviet Union and its successor states, including the Russian Federation. The noble Lord, Lord Garden, mentioned the USSR. No one who has witnessed the abuse of power, human rights abuses and the erosion of liberty in the former Soviet Union can be indifferent to the importance of defending the rights and privileges of civil society. Yet, certainly in Russia, part of the problem has been the corruption of the judiciary and the judicial process, which has conspired to make the law and justice an arm of government policy.
	In Britain, we have benefited from an independent judiciary, which, although it has made some spectacular mistakes in the past—for example, the Guildford Four and the Maguire Seven—has remained largely incorruptible. It seems to me that the role of the judiciary in a civil society is to interpret and uphold the law, not to make political judgments or even protect national security. The noble and learned Lord, Lord Donaldson of Lymington, clearly stated that view.
	Governments and politicians must make their decisions on when national security and the safety of the country is threatened. Judges then have a role in ensuring that politicians' actions remain within the law. As has been said today, politicians are politically accountable for their decisions in a way that judges are not.
	I do not agree with the noble Lord, Lord Garden, about the suspension of due judicial process in the Prevention of Terrorism Bill. The Bill before your Lordships' House strikes the right balance between civil liberties and protecting national security and the lives of our citizens. The role of the courts in both derogated and non-derogated orders is clear and represents a real check on unreasonable and unjust behaviour by the executive. In the case of non-derogated control orders, judicial review will ensure that the Home Secretary's actions remain reasonable and proportionate.
	After the Law Lords' decision last December, the Government had to act to protect the population in those cases where there was insufficient evidence to prosecute cases up to the point of "beyond reasonable doubt". It seems inconceivable that the Government should fail to take action to prevent an atrocity on the scale of the Madrid bombing simply because they failed to muster enough evidence to achieve a successful prosecution.
	I agreed with my noble friend Lord Clinton-Davis when he said that maintaining Part 4 powers, given the universal condemnation by the Law Lords, would be perverse. I am surprised that the Conservative Benches support what would be a wholly inadequate stop-gap measure. The British public certainly will not understand a failure to take preventive action against terrorists where the Home Secretary reasonably suspects involvement in terrorism.
	As my noble friend Lord Young of Norwood Green pointed out, a recent poll showed that three-quarters of those asked believed that it may be necessary sometimes to take action against people who have not yet committed any offence. The Government have indicated that prosecution will always remain the preferred course, as shown by the arrest and prosecution of Saajid Badat, another of our home-grown terrorists. As my noble friends Lord Giddens and Lord Harris of Haringey said earlier, we are facing a formidable and unprecedented terrorist threat, a ruthless opponent who will stop at nothing to cause mass slaughter and mayhem.
	Al'Qaeda is not another form of the IRA, and we blur the distinction at our peril. No other terrorist organisation has threatened the use of nuclear weapons, which Al'Qaeda would undoubtedly use in some form if it could get hold of them. There are no grounds for complacency.
	In response to the noble Lord, Lord Forsyth of Drumlean, who is not in his place, the country will not thank your Lordships if we acknowledge that we saw the threat coming but prevaricated and fumbled in response.

Lord Haskins: My Lords, I have been struggling to find the new factors that are driving us to require the Bill. The only new element that I can see is the arrival of the suicide bomber. He had not been on the screen before. I understand the dilemma the Government have in dealing with the problem of the suicide bomber, although whether this legislation is the most appropriate method to deal with it is another issue.
	I am very unconvinced by the argument of the noble Lord, Lord Giddens, that the global and technical nature of so-called "new terrorism" justifies these massive changes in our laws on civil liberties. I was a bit shocked when he made an obscure analogy with global NGOs. I am not sure what he meant by that. These problems must be, and can be, dealt with by greater co-operation between security forces across Europe and internationally without new national legislation. That is the best way to deal with them. National legislation does not deal with that problem.
	I am trying to reconcile the Prime Minister's observation on Woman's Hour—which everybody seems to have heard, except me—that there are hundreds of terrorists operating in Britain with the Government's assurance that these new powers will be used sparingly. Does that mean that most of these terrorists are old-style terrorists who can be dealt with under existing law and that only a handful are new-style terrorists?
	I am also not very impressed by the support of the noble Lord, Lord Giddens, for scaring the public in order to get something to happen. History shows that politicians who use scare stories to make their point have been notoriously unconcerned about civil liberties, which are usually put at risk as a result. There are some very nasty historical experiences there. Fortunately, the British do not scare easily.
	My concerns about the Bill are therefore that there is a danger of making martyrs out of villains, which is always the case when one takes an undemocratic approach to a problem; the consequences of another Birmingham Six mistake during the process, which blows the whole thing out of the water; a huge reliance on the somewhat inconsistent intelligence provided by our security forces that is not being subjected to adequate judicial scrutiny; and, above all, as an ex-chairman of the Better Regulation Task Force, I worry about complicated, significant, historic legislation being introduced on the hoof, at great speed.
	We are clearly going to have a Bill. I make two suggestions: first, a judge should examine the process for both the non-derogating as well as the derogating orders to assure us at least that the process is being adhered to. Secondly, the provisions for the review of the Bill should be strengthened. Should not a Bill of this magnitude be subject to an annual review by Parliament rather than by the Secretary of State and be annually reviewed by Parliament, as was the case with Northern Ireland anti-terrorist laws—in other words, should it not have a sunset clause?

Lord Stoddart of Swindon: My Lords, being the thirty-fourth speaker, I have listened to this debate throughout. I have noticed most of all that the balance of opinion is well against this Bill. I have also noticed that people believe that it is a rushed job, and that it should not be. They believe that it should be given proper consideration. One almost suspects that the Government have brought forward this Bill in haste simply out of a fit of pique at the Law Lords' ruling on Part 4 of the previous terrorism Bill. I hope that is not so.
	Rushing the Bill through Parliament is a constitutional outrage. Forcing it through the House of Commons in only two days smacks of autocracy rather than democracy. How on earth can we presume to lecture other countries about democracy when our own Government—a so-called Labour Government—shows such contempt for the democratic process?
	This afternoon, I heard the noble Lord, Lord Giddens, attack the liberal Left from the Labour Benches. The liberal Left! I joined the Labour Party because it was a liberal Left party. I understand, of course, that there are members of the Government who joined the illiberal left party. I was never tempted to go along that road.
	This shows such contempt for the democratic process. The Home Secretary only added insult to injury yesterday by telling the House of Commons—which discussed only one amendment out of something like 177—that his concessions would not be made in the elected House, but in this House. How insulting can you get?
	To get support for the Bill, the Government are generating an atmosphere of fear among the population by conjuring up dubious statistics. We have already heard that the Prime Minister said on "Women's Hour" that there were several hundred people in this country plotting to, or trying to, commit terrorist acts. This claim, incidentally, is denied by a senior security source, which said that the figure was much lower—only about 20 to 30. The same source said that the Prime Minister's remarks were inaccurate, irresponsible and likely to scare people unnecessarily.
	It is in that context that this Bill is being brought forward to us. In the House of Commons, the Home Secretary said that control orders would affect only a handful of people. The Government cannot have it both ways. If hundreds of British people are suspected of terrorism, and we are going to deal with only a handful of them, what is happening to the rest? The Government must answer that question.
	Why should anyone believe what the Prime Minister says? His action, in joining in the illegal war in Iraq on the basis of that country having weapons of mass destruction that could be used in 45 minutes, which was shown to be untrue, has enhanced the terrorist threat to this country. Now he wants to use the tools of dictatorship to deal with what he has in fact helped to Create; the perceived threat which, according the security services, is much exaggerated—as we have already heard from other noble Lords. The Prime Minister trumpets that he will always put security before civil liberties; but without respect for civil liberties we have no real security and descend to the level of those petty dictatorships that we all abhor.
	The Home Secretary claimed in the House of Commons yesterday, and the noble Lord, Lord Young, claimed in this House today, that an opinion poll in the Daily Telegraph showed majority support for this Bill. But they should be wary of such polls, especially before the contents of the Bill have been thoroughly scrutinised by this House and by others. Noble Lords will recall that during the passage of the draft Regional Assemblies Bill, the Government referred to opinion polls in the north east showing 71 per cent support for their proposals. In the event, at the referendum, the people of the north east on a pretty high turnout rejected the Government's proposals by a margin of three to one. The Government, and others, should be careful of relying on opinion polls to support this offensive and oppressive legislation.
	As the Bill received so little scrutiny by the properly elected representatives of the people in the House of Commons, it is now left to this House to give it further and proper scrutiny in only two further days. This oppressive Bill needs far more time than we have been given to be properly assessed and scrutinised. The Committee stage is the day after tomorrow, hardly time to properly read this Second Reading debate, let alone to reflect on it. The list of state powers against the suspect in this Bill is formidable. The requirements demanded of him or her are unprecedented in peace time. They will be expected to give answers to questions without knowing exactly what they are charged with. That is completely against every tenet of decency and justice that we know in this country.
	This morning, the Home Secretary declared that there will be no further concessions. In that case, this House will have to put the Bill into a shape which not only deals with any terrorist threat, but which preserves the civil liberties that this country has enjoyed for centuries, and without which we shall be at the mercy of state power. If we jettison those hard-fought-for civil liberties, the terrorists will have won, as the right reverend Prelate said earlier in the debate.

Lord Neill of Bladen: My Lords, it is an extraordinary feature of what is happening here today that we are having a Second Reading of a government Bill that, tomorrow morning, will be radically altered by a series of government amendments. The terms of those are unknown to me; I have had some indication by listening to the noble and learned Lord the Lord Chancellor. We are having a Second Reading on something that is about to change. The change is highly material to the one point that I want to make at this late hour, being No. 35 in the batting order—if you can have that many batsmen.
	My point concerns the role of the judges. I shall make one preliminary observation before I come to that. The judges have been carefully referred to by previous participants in the debate. I was first put on to this line of thought by the noble and learned Lord, Lord Mayhew of Twysden, who last week raised the flag on which were the words, "Beware! Take care of the role of the judges". My preliminary observation is about a fundamental flaw in the Bill, in the attempt to draw a sharp distinction between a derogating control order and a non-derogating control order. It is not an original point, obviously; it has been made by many.
	To find out how the distinction is supposed to work, you begin at Clause 2(1), which states:
	"The Secretary of State may make a control order imposing an obligation that is incompatible with the controlled person's right to liberty under Article 5 of the",
	convention. You are given an adjectival description of what is to be a derogating control order. You then look to get a bit of guidance from Clause 1(3), which lists the types of control orders that can be made. One of them—it was mentioned earlier—is in paragraph (c), which is a restriction in respect of work. Let us suppose that a suspect worked on the Internet or something like that, and the restriction is that he must cease all work that he currently carries out as an employee, and must not carry it out at home in another occupation linked with his place of work. He is also required to surrender his passport under paragraph (i) in the long list.
	Would you say that that man's liberty has in some way been controlled so that those restrictions are incompatible with his unfettered right to liberty under Article 5? That is simply one illustration that you can give; many more arise out of the 15 examples in Clause 1(3). The whole of that definitional framework—the idea of creating two separate regimes—seems not to have been thought through and to be fatally flawed.
	Perhaps we need to remind ourselves that judges are a very precious element in society. The integrity of the judiciary and their role must be preserved by all possible means. It sometimes occurs to me that we run great risks in the way we use our judiciary to conduct inquiries in politically sensitive areas. In Australia, for example, although it is not necessarily a universal truth, judges are usually not used at all for public inquiries because of the danger that the judge may be seen to be a creature of the executive, whitewashing what they have done and giving a bad impression of the judiciary.
	I came across another extraordinary example the other day. It is a case I happen to have some connection with, and I had better be careful what I say because of the degree of secrecy attached to it. A judge was asked by an emanation of government to conduct an inquiry, and was referred by the party objecting to producing documents to a statute that the judge was persuaded made it impossible for him to make an order for them to be produced. The other party to the proceedings was not allowed to know the name of the statute under which the judge was making that order. I began to think that Kafka's The Trial was a pretty liberal description of transparency at a proceeding where everyone understood what was going on. We have to be careful.
	There are three possible roles for judges. Under the Bill as drafted, there is a full appeal process for a derogating control order. As I understand it, that is the terminology in Clause 2. The judge is to look at that on appeal on an order from the Minister and decide whether, in the various respects set out in subsection (2)(1), the Minister got it right. That is pretty strong, because he is reviewing whether the Minister rightly considered that the imposition of the obligation was necessary for the purposes connected with protecting members of the public from risks arising out of a particular emergency. He has also got to be satisfied on that appeal that the person under suspicion is, or has been, involved in terrorism-related activities. What material will be placed in front of the judge so that, as a judicial function, he can decide whether the evidence stands up and he is being told everything relevant to the sources, and whether he is getting the full picture? It seems that under Clause 2, a full appeal process is involved.
	Regarding a non-derogating control order, we are told by subsection (7)(7) that that is only a judicial review test. Attention has been drawn to an unfortunate provision in Schedule 4(3)(c) to the Act, which says that
	"Rules of court made in exercise of the relevant powers must secure . . . that the Secretary of State is not required for the purposes of any control order proceedings or relevant appeal proceedings to disclose anything to the relevant court, or to any other person, where he does not propose to rely on it in those proceedings".
	So if it is adverse material, as was said earlier, it is completely contrary to conceal material that would point the other way, and might be in favour of the person who is the subject of the control order.
	They are the two procedures under the Bill before us: a full appeal for derogating control orders, and judicial review for non-derogating orders. Coming around the corner—presumably we will see this tomorrow—is a third role, which is the judge as the maker of the original order. The noble and learned Lord, Lord Donaldson, touched upon that point. One feels at a disadvantage in having a Second Reading on a Bill that is going to change, because we do not know whether to write in "the judge" in subsection (1)(1), as the noble Lord suggested, so that the judge,
	"may make an order (called a 'control order') against an individual if he—
	"(a) has reasonable ground for suspecting the individual is or has been involved in terrorist-related activities",
	or if he considers it necessary to make the order to protect the public against acts of terrorism.
	I am making the plea that we should move very carefully. More time is required—I am repeating what others have said—to consider the matter. The old Act should be renewed or kept alive to give us proper time. There should be discussions between the parties, and wise counsel should be given a chance. We should then look at the Bill and if it involves judges, they should be involved in a way in which we can feel sure that they are acting in a true judicial role, with full materials in front of them, with no concealment and no disadvantage for the person against whom the order is sought. Something will have to be done to try to ensure that the scales are not loaded against such a person.
	Some of your Lordships may recall that Professor Simpson wrote a book with the unusual title In the Highest Degree Odious. Those words were in fact a quotation from Winston Churchill's description of Regulation 18B in what is known as World War II. Those are warning words and a route down which we should not go. For the moment I regard the current Bill as amply meeting the adjectival description by Mr Churchill. What he would have said about it, one can only imagine.

Lord Dholakia: My Lords, after 36 speeches, we come to the concluding part of the debate. Perhaps I may take the opportunity to thank the noble and learned Lord, Lord Falconer, for his explanation of the Bill and say how much I look forward to the explanation of the noble Baroness, Lady Scotland. She gave very little away on "Newsnight" last night, but I hope that she has some better news for your Lordships' House.
	With a majority of 161 reduced to 14, the Government did not do well in the other place, and I suspect that they are in for a tough time in your Lordships' House. I have spent just about seven years in the House. I am proud to belong to a party that does not compromise on civil liberty issues. I congratulate my noble friends Lord Thomas of Gresford and Lord Goodhart on their bold stand against the Bill. Equally, I subscribe to what my noble friend Lord Phillips of Sudbury and the noble Lord, Lord Dubs, said about the hearts-and-minds arguments that we need to take on board.
	Civil liberties issues matter, and they matter most because they are central to our democratic system of government. Equality and civil liberties had to be fought for over centuries. It is therefore a shame that such a short time is being given to scrutinising and revising legislation that goes to the heart of our democratic process.
	Rushed legislation produces bad laws, and bad laws are difficult to implement. We learnt at least that from the judgment of the Law Lords. This is not an argument about the old style of terrorism and the new style of terrorism. At the heart of the arguments that we have advanced so far is our belief that, in any situation, the supremacy of due process must prevail.
	Yesterday's debate in the other place must have been uncomfortable for the Home Secretary. He simply has to look at the headlines in today's newspapers to see the shambles that we are in. We have to see the legislation on the prevention of terrorism in the light of a number of attacks on our civil liberties by the present Administration. In the past seven years, I have seen our values eroded time and again. The noble and learned Lord, Lord Mayhew of Twysden, identified some of them. Part 4 of the Anti-terrorism, Crime and Security Act 2001 introduced detention without due process of law for non-British citizens suspected of terrorist links. We have seen major attacks on trial by jury, which is an essential bedrock of the British system of justice.
	At that point, the noble Earl, Lord Onslow, said that he had run out of paper; I have not. There are other issues: attacks on our judiciary became almost commonplace during David Blunkett's time as Home Secretary. My noble friend Lord Goodhart has in the past highlighted how the extradition process means that British citizens can be removed abroad without adequate protection. We will soon have legislation on identity cards, and we have already succeeded in removing judicial review in asylum cases. In addition, we have seen cuts in legal aid and the disclosure of antecedents before our courts. This paints a bleak picture of the Government's record on civil liberties.
	I fear two things. The constant, unremitting attacks on human rights and civil liberties have damaged our democratic values. But attacks on our justice system also undermine the law internationally. Many countries trying to develop a system of justice based on our principles now have an alibi to do less because we have retreated from our centuries-old, tried and tested system of justice.
	The first and fundamental issue, which is central to all the arguments advanced in this debate, is who should be responsible for the decision to make control orders. On these Benches, it is clear that the proposals made in the Bill are not acceptable.
	Our judicial system is founded on the assumption that decisions about custody or deprivation of liberty should, as a matter of principle, be for judges and that any decision to vary the effect of the order should also be for a court. That has served us well and has been instrumental in ensuring that democratic nations across the world would follow this principle. One of the central tenets of our criminal justice system is that no one is guilty of a criminal offence unless proven guilty by a court of law. Again, those are the very principles enshrined in the European Convention on Human Rights. I do not believe that we have identified any circumstances which should deny an individual a fair trial.
	During the passage of the Anti-terrorism, Crime and Security Act 2001, we warned that there was an undue haste in suspending human rights, which resulted in the indefinite detention without trial or charge of a number of foreign nationals. In such cases, I do not detect much difference from those detained in Guantanamo Bay or in Belmarsh prison.
	We now have the Law Lords judgment and the Home Secretary has already indicated that he intends to free the remaining detainees shortly. That begs the question, as it does with the detainees in Guantanamo Bay, that if the evidence against those detainees was so serious that they could not even be told what it was, why are they now likely to be released? We have to draw some very hard conclusions.
	The Government cannot continue to hide behind the statement that disclosure of evidence may compromise our security and intelligence service. The reason why the public is sceptical has something to do with the way in which we handled the Iraq crisis. Week after week we were told about weapons of mass destruction. We have to go back to the debate in the other place. That was the central theme of the Prime Minister's message to the British people.
	That dossier on Iraq's alleged weapons of mass destruction does not sit easily with the present legislation. If the judgment was fundamentally flawed, how much trust can we place in the present pronouncement that the Bill needs to be seen in the context of the scale of the continuing and serious threat to the security of the United Kingdom from terrorism?
	We are asked to balance between civil liberty issues and the security of our nation. We are all asked to do that on the basis that we should trust the Government. That is a very cruel dilemma which we all face. On the one hand, we are aware that there has been loss of trust. On the other hand, to do nothing is not an option.
	It is for these reasons that the principle of civil liberty and justice should be sacrosanct, but that we can find acceptable answers to ensure that the security of our nation is not sacrificed. It is perfectly possible to do that without the draconian measures announced by the Government.
	Central to our argument is the recognition that it has never been the basis of the rule of law in the United Kingdom where the Executive decide, and are accountable to Parliament, about locking up individuals on the grounds of criminality. The noble Lord, Lord Harris of Haringey, will have to look at past decisions of the Home Secretary which were found to be in breach of law by our judiciary.
	I am sure that all of us in your Lordships' House are pleased to note that even at this late hour on the Bill, the Government have recognised the principle that it is not the Executive but the judiciary which will take the decision affecting the liberty of an individual.
	There is no dispute about the need for control orders. A control order may impose any obligations necessary for purposes connected with preventing or restricting an individual's further involvement in terrorism-related activity. We now have the Home Secretary's assurance that control orders involving deprivation of liberty will be made by the judiciary.
	We have already been told by the Home Secretary that he does not foresee using house detention, thus removing the need to derogate further from the ECHR, and that that is based on advice received from the police and security services. If that is the case, it is hardly a concession at all. In any case, why does he need such a power, given that he already enjoys a broad range of powers under existing law to control the residence, movement, employment and liberty of persons subject to immigration control?
	We have a further concern. A person subject to a non-derogatory order may appeal against its initial imposition, any renewal or non-consensual modification of that order, or a refusal by the Secretary of State to modify it. But we need to be clear about what that appeal is. It is more a judicial review examining whether the decision of the Secretary of State is flawed. We have no doubt that orders, either derogatory or non-derogatory, should be dealt with with due process and with full judicial control. We cannot accept that the court acts merely to confirm the suspicions of the executive without the safeguards of criminal law. We shall examine this provision very carefully in Committee to ensure that it fully meets the concerns we have expressed but I say now that it is perfectly possible to set up special courts or security-cleared juries and to appoint special judges to deal with such matters.
	But let us not blur other issues in the Bill. The Home Secretary is going beyond what the Law Lords had in mind. Detention is not at present confined to foreigners. The Government wish to extend the power to UK citizens as well. There is a need for clarification. I shall, of course, be guided by those well qualified to interpret legal terminology, but the noble and learned Lord, Lord Hoffmann, stated:
	"In my opinion, such a power in any form is not compatible with our constitution".
	In our response to the Statement to your Lordships' House, we advocated the need to admit intercepted evidence. I am glad that the Home Secretary has kept an open mind and we trust that the Intelligence and Security Committee will soon have a view. Suffice it to say that if such evidence is admissible in other parts of the world, we need to consider seriously its applicability in our courts.
	My noble friend Lord Thomas of Gresford has explained our concern about the standard of proof required to impose a control order. On closer examination, the standard of proof is identical to that operating in proceedings before SIAC under Part 4 of the 2001 Act. Will the Minister confirm that in December 2001 the House of Lords found that incompatible with the Human Rights Act? If that is the case, should we not now be looking at higher standards of proof? If the appropriate standard of proof on anti-social behaviour orders is that of the criminal law—that is, beyond reasonable doubt—surely the same standard is required where the allegation is about involvement in terrorism.
	I conclude by quoting a little note I received from Emma Chesterman, who wrote to me about the Bill. She is a student studying for a masters degree at King's College London. She wrote:
	"No terrorist force however strong or terrifying can destroy our civilisation - we alone can do that by allowing ourselves to be bullied or scared into dismantling the structures which made it what it is. At the moment I am far more afraid of Parliament than I am of any terrorist".
	I assure the Minister that we will work toward maintaining the balance between matters of equality and civil liberties and the rule of law to protect the country from terrorism. It is perfectly possible to achieve that balance.
	We do not simply want to claim the moral high ground on matters of human rights and civil liberties. That belongs to all of us. Equally, we do not want any one political party to claim the moral high ground about tackling terrorism. That responsibility belongs to all of us. It is not an either/or situation. It is to strike the balance that has made our justice system the envy of the world. We shall examine the provision very carefully in Committee to ensure that it fully meets the concerns that we have expressed all along.

Lord Kingsland: My Lords, this has been an outstanding debate with many fine speeches. The balance of opinion expressed has been perfectly obvious to me and I am in no doubt that it has been perfectly obvious to the government Benches as well. Moreover, the Government can be in no doubt that they will face many amendments to the Bill.
	I want to emphasise, as my noble friend Lady Anelay did at the outset, that the Opposition accept that the threat posed by terrorism is very serious and that its nature is unprecedented. My noble and learned friend Lord Mayhew said that we should all give that factor great weight when considering the solution that we are seeking in the legislation. I agree.
	We on these Benches are seeking to devise a legal response that is proportionate to the threat. We have concluded that it is possible to achieve a proportionate response that is consistent both with the preservation of the fundamental values in our society and the legal processes that protect them.
	We utterly repudiate any suggestion that those who seek to amend the Bill in some way become an added component of the terrorist threat.
	The pre-eminent value that we seek to protect is the right of someone incarcerated by the Government to have a fair trial. That is one of the great principles of our society. That principle must lie at the heart of any proportionate response, together with the preservation of the presumption of innocence and the right of the defendant to know the case against him and to be in a position to respond to it.
	I entirely agree with the noble Lord, Lord Clinton-Davis, who said that the system of control orders should be at the end of any process, not at the beginning. The beginning of the process should be a thorough search to bring the alleged terrorist in front of a criminal court at a criminal trial.
	The Government have two responses: first, that many alleged acts committed by alleged terrorists do not fall within the definition of any criminal act; and secondly, even if they do, the evidence will often be inadmissible or, if adduced, it will compromise the source of that evidence or the technique that was used to garner it.
	I have seen no serious attempt by the Government to consider widening the nature of criminal offences to include many of the acts preparatory to terrorism that fall into the category that will be dealt with by control orders. One of the reasons is because the Government have given themselves so little time to deal with these matters. If they had given themselves more time, they would perhaps have come up with some offences that would have enabled us to prosecute rather than to issue control orders.
	Like the noble and learned Lord, Lord Lloyd of Berwick, I do not accept that the Government have seriously considered the issue of intercept evidence. Even if, at the end of the day, we have to protect the sources of certain evidence or the techniques by which it was gathered, it is still possible to invite a judge to engage in a sifting process whereby those elements can be sifted out, and he can then look at what remains to see whether a prosecution would be possible. In any event, I believe that the role of the DPP should be on the face of the Bill and that the process should start in the usual way.
	However, I accept that there will be some categories of behaviour that will pose a threat to the state and will simply not be susceptible to the criminal process. This is where we move on to the control order. I also accept that control orders cannot be the subject of the full protection of the criminal law; but I do not accept that individuals do not deserve the full protection of the due process of law. It is the absence of the due process of law in this Bill which concerns us deeply.
	As your Lordships are well aware, there are two categories of control order in this Bill, one category which derogates from Article 5 of the convention and the other which—so the Government say—does not. I shall deal first with the one that derogates from the convention.
	As your Lordships are aware, the procedure here is initiated by the Secretary of State; once the order is made, he is required to send it immediately to the court and, within seven days, the court must make up its mind whether the case has been made out by the Secretary of State. If it has, there is a further stage at which the High Court considers the matter on its merits.
	What concerns us deeply about the process is what appears in the beginning of paragraph 4(1) of the Schedule, on page 17 of the Bill. I shall read out the excerpt to make it absolutely clear to the Minister that she will face amendments on this matter by tomorrow evening. The paragraph states:
	"Rules of court made in exercise of the relevant powers may, in particular—
	(a) make provision about the mode and burden of proof in control order proceedings and about evidence in such proceedings;
	(b) enable or require such proceedings to be determined without a hearing; and
	(c) make provision about legal representation in such proceedings".
	It is unacceptable to us that the burden and standard of proof in these matters should not appear in the Bill. As written here, it would be possible to change these in relation to each individual case. That is wholly unacceptable. Nor is it tolerable that these proceedings should be determined without a normal hearing or that the rules will make it possible for the individual accused not to have legal representation.
	I move on to paragraph 4(2)(a), which states:
	"Rules of court made in exercise of the relevant powers may also, in particular—
	(a) make provision enabling control order proceedings or relevant appeal proceedings to take place without full particulars of the reasons for decisions to which the proceedings relate being given to a relevant party to the proceedings or his legal representative (if he has one)".
	I find that quite unacceptable. It is unacceptable that the reasons for decisions cannot be given to the party who is to be subject to a control order. It is hard to see how any of your Lordships can be complacent about that.
	Then paragraph 4(2)(b), which state that the rules of court may,
	"make provision enabling the relevant court to conduct proceedings in the absence of any person, including a relevant party to the proceedings and his legal representative".
	So it would be possible for the court to proceed in the absence both of the defendant and his legal representative. Again, I am bewildered as to how the Government could possibly imagine that that could conform with the principles of due process.
	I finally come to the most glaringly offensive component of the paragraph—paragraph 4(3)(c), to which the noble Lord, Lord Neill of Bladen, has already referred and which was mentioned in the speech of my noble friend Lady Anelay earlier today. This paragraph states:
	"Rules of court made in exercise of the relevant powers must secure . . . that the Secretary of State is not required for the purposes of any control order proceedings or relevant appeal proceedings to disclose anything to the relevant court, or to any other person, where he does not propose to rely on it on those proceedings".
	The situation is therefore exactly as stated by the noble Lord, Lord Neill of Bladen. Any evidence that might be favourable to the person threatened with the control order can be withheld, both from the court and from him.
	The Government told us last night, in another place, that it will substitute a judge for the Secretary of State in this procedure. I derive no comfort from that at all—though I am glad that they have, at least, moved in that direction—because, as paragraph 4 stands, a judge is being asked to engage in a process which is not a judicial process. It is a political process. Simply substituting the judge for the Secretary of State does not advance the cause of due process at all. All it does is to contaminate the judiciary by involving it in a political process.
	Did I hear the noble and learned Lord the Lord Chancellor say that I ought to be subject to an immediate control order? I wonder whether he is considering bringing it in under Clause 1 or Clause 2?

Lord Kingsland: My Lords, I shall move on. As regards the other situation for control orders, the protection for the individual is even weaker. Here, I understand that the Government remain firm that the Secretary of State will initiate the order. There will be no opportunity for automatic review by the court, which will only review if there is an appeal. That review by the court will not be on the merits. It will only be as to whether the procedure has been properly followed by the court.
	That provides no due process protection at all. Non-derogating orders, like derogating orders, should be dealt with on their merits in a manner conforming with an amended schedule to the Bill.
	In addition, we will propose two further safeguards. The first has already been heralded by the noble Lord, Lord Brennan. The control orders system should be regularly reviewed by a committee of Privy Counsellors; we believe that ought to be on the face of the Bill. Secondly, we believe that there should be a sunset clause in the Bill.
	Of course, it will be difficult, in the time that we have in front of us, to consider all these matters as thoroughly as we ought; but at least I have the comfort of knowing that your Lordships will make a much better fist of it than those who inhabit another place.
	Indeed, I see no reason why we should be rushed into these matters at all. I disagree with those of your Lordships who say that it would be illegal to renew the 2001 legislation on 14 March. It is quite clear that the declaration of incompatibility by the Appellate Committee of your Lordships' House does not prevent the Government legally extending the 2001 Part 4 legislation for a while. We know, in any case, from what the Government have said about those who currently inhabit Belmarsh under Part 4 that they have no intention of putting them under house arrest after 14 March.
	The manner in which the Government have rushed this legislation has done them no credit. Those who observed the proceedings in another place are fully aware of that. The conduct of the Government was in fact worse than oppressive; it was ridiculous. There is no more damaging emotion for the electorate to experience about the Government than that of ridicule. Their conduct seemed to be orchestrated by a choreographer employed by the legendary Fred Karno. We by contrast will table our amendments tomorrow afternoon and fight very hard to win them all.

Baroness Scotland of Asthal: My Lords, I believe 11 are still there.
	I understand entirely those who say we would rather not be in a position where the orders would expire on 14 March. If we do not have some substitution of the Part 4 provisions—and, as we reasonably anticipate and the noble Lord, Lord Goodhart, agrees, if we are not in a position where we can in good conscience extend those powers—we are faced with the possibility that the Part 4 order comes to an end. There is no control alternative to be put in its place by way of substitution, and we are therefore left in a position of releasing those against whom we think proper restraint and control should be put in place.
	The Government and my right honourable friend the Home Secretary have taken careful note of what has been said by the security services and the police about the nature and extent of control that would have to be put in place of substitution of full-time detention in order to give us the security that we seek. The current view is that the non-derogative provisions contained in this Bill, if implemented by Parliament and brought into force, would provide an ambit of security which would be sufficient for those currently detained.
	I will not hide from the House that that is, of course, a very delicate risk assessment. I concur with those, particularly my noble friend Lord Desai, who say that there is no perfect solution. We will not have perfect security. We cannot perfectly respect and support liberty and have perfect security too. There is always a balance, a management of risk. The risk assessment at the moment is that the use of the derogative powers, which would currently entitle us to detain on a full-time basis, is not necessary.
	So, my Lords, I very much welcome the feeling in the House that there is a small cadre of people who fall outwith the criminal procedure and for whom the control orders may be necessary. I also understand entirely the comments made in relation to the due process of law. Of course, the noble and learned Lord the Lord Chancellor in opening, and I in replying to the Statement, made clear that we too see the necessity for careful scrutiny of that process.
	We are now placed—as a result of the comments made by the noble Lord and others in relation to the position of the judiciary—in a rather interesting position. Noble Lords will know that the Government's preferred position was that the Home Secretary, being the person who on behalf of the Government shoulders the political responsibility in the main, should have the responsibility to make that initial political decision, which would then be speedily reviewed by the judges. To use the analogy proposed by the noble and learned Lord, Lord Donaldson, the judge remains the umpire and does not get on to the pitch and put on his boots. I was not sure whether the noble and learned Lord was referring to cricket boots or football boots, because otherwise we are talking about referees and boots.
	However, we listened—

Baroness Scotland of Asthal: My Lords, if I may finish this sentence I would be grateful. We listened carefully to what was said by all of those who urged with great energy that it should not be the Home Secretary who made that decision in relation to derogating orders, it should be the judges. I hear too the concern echoed on behalf of the judiciary by the noble and learned Lord, Lord Neill. In my response I foreshadowed that that might be an anxiety, and it was for that reason I explored it when I made the Statement.

Baroness Scotland of Asthal: My Lords, the conditions have not yet been set. The basis on which those orders would be made is not clear. If we possibly can, we want to move seamlessly from the position that we are in now into a position which would be better controlled under a non-derogating order.
	May I come to some of the process issues raised by a number of noble Lords? Will your Lordships forgive me if I do not refer to every person by name, not least because many noble Lords mentioned all the matters with which we are now dealing? I would have to recite 35 names in relation to them. Noble Lords should assume that I am referring to them if I am dealing with their point.
	I should tell the noble Lord, Lord Kingsland, that I am grateful for paragraph 4(3)(c) of the schedule having been highlighted by his noble friend Lady Anelay and by him. We think that it has been cast to wide. We intend to address that when we come too deal with it. The other process matters will be looked at. In the first instance, the noble and learned Lord the Lord Chancellor will be responsible for making the rules. If the matters continue, we will expect the ordinary rules committee to look at it.
	It is not proposed that the individuals be without legal assistance. It is proposed that the special advocates would continue, and that part of the proceedings should be closed and some open. It is also intended that, so far as possible, those made subject to the orders should have as much information as it is safe and satisfactory to give them, and that it is only where information could not properly be given—for the reasons already outlined and referred to by the noble Lord, Lord Carlile, in the quotation that I read out—that it should not be disclosed. I hope that we will be able to satisfy your Lordships on that issue in due course.
	A number of noble Lords, not least the right reverend Prelate the Bishop of Worcester, said that we have to look to the spirit of this country and make sure that we do not trespass in a way that would damage that spirit and indirectly give the terrorists the prize that they seek; namely, some deterioration and reduction in our concept of civil liberties. That is something that we value. I say to all those who made that point that we wholeheartedly concur, but are left with a situation in which a small number of cases cannot be dealt with in a way that we would ideally desire, although that is a consummation devoutly to be wished for.
	Therefore, we have to craft something that is fit for the purpose, which will keep our country and our citizens safe. We must intervene only as much as is absolutely necessary with their liberties to do it. Of course there is a debate—a vibrant debate, if tonight is anything to go by—on where that line should be. However, I assure the House that the Government share the aspiration warmly.
	We then come on to why there is a difference between non-derogating and derogating orders. I shall deal with that part of the debate in short form. Derogating orders involve a deprivation of liberty. Non-derogating orders involve a restriction on liberty. Of course, the question is always how far the restriction is merited. There was a genuine and proper question about what combination or constellation of those matters and conditions currently set out in non-derogating orders could amount to an Article 5 derogating order.
	I make it plain that it will always be capable of being argued before the High Court that the combination alighted on by the Home Secretary trespasses against that dividing line, and could turn a non-derogating order into a de facto derogating order. If that were so, the court would be entitled to say that that was outwith what the Home Secretary was entitled to do, on a case-by-case basis, not least because no two cases are likely to be exactly the same. There may be a combination of conditions that would have to be put together, which may or may not take one to that threshold, but that will be a question of fact.
	I do not accept that judicial review does not have teeth. If one looks at the governments who have been subject to it, each administration has had bite marks all over it. We know judicial review is powerful and can be effective. We also take into consideration the whole issue of proportionality. The court will be entitled to look at proportionality and at how the ECHR is affected.
	We will return to what is a proper role for the judges, as we still have to debate it in more detail. My right honourable friend the Home Secretary has indicated that he is willing to move in that regard, and that tomorrow we will table amendments that will permit the substitution of a judicial decision as opposed to that of the Home Secretary. However, in the main, it will be the Home Secretary who will make the decision. Your Lordships will know that the Secretary of State is referred to in a generic form. It could be the Secretary of State for Northern Ireland, or the Home Secretary on behalf of the UK. Those issues are interchangeable.
	In relation to Scotland, while I am on my feet, in response to the question posed by the noble Duke, the Duke of Montrose, we have spoken to the president in that regard. Those matters will be dealt with in an appropriate manner.
	One of the issues raised by the noble Baroness, Lady Falkner, and by my noble friends Lord Ahmed and Lord Desai, is the impact on the Muslim community. These orders are not targeted at that community. We will do, and have done, everything we can to ensure there is a proper understanding. We have taken to heart the strictures of the Newton committee, which have been referred to by the noble Lord, Lord Newton, the noble Baroness, Lady Hayman, and, in the case of Re A, where they say that the threat does not simply come from international terrorists, but also from our own nationals. People have asked, "Why the change?" That change is the result of a deepening of understanding of that threat. In 2001 it was thought that the major threat came from international terrorists; non-British nationals who may be passing through or resident here. That understanding has changed. An example of that is what we know of the "shoe bomber", a British national who has behaved in a reprehensible way.
	The effect of the court's decision was also an indication that we had to think again. I remember the trenchant debate we had on this subject when we discussed the committee chaired by the noble Lord, Lord Newton. I will not put it colloquially, but our judgment was seriously being challenged. It was said that we were failing in our duty to address the threat coming from British nationals. I can only say to my noble friend Baroness Hayman that I hear you; mea culpa.
	There are a number of difficult matters with which we must deal. I have already made clear that the difference between the non-derogating orders is a matter of degree. The judge has to make the derogating orders on application by the Secretary of State, and we are setting out clearly what that procedure is. We understand the need for the prosecutor clearly to make the decision whether prosecution is possible, and reassure noble Lords that we will do nothing to undermine or diminish in any way the role of the DPP. We will consider how that may need to be strengthened, and what we can say about those matters.
	In probably little more than 24 hours we shall return to this issue. I hope that all the amendments will be completed and available to noble Lords first thing tomorrow morning and we shall look carefully at the amendments. I can assure noble Lords that if I have not responded to each and every matter, they will be looked at in the next 24 hours. I hope that I have dealt with the majority of the major concerns that have been raised in the debate. I thank your Lordships for your tolerance because I see that the clock is now at a quarter past the hour.
	On Question, Bill read a second time, and committed to a Committee of the Whole House.

Lord Bassam of Brighton: My Lords, I beg to move the Motion standing in the name of my noble friend Lady Scotland of Asthal on the Order Paper. This regulatory reform order is brought forward under the Regulatory Reform Act 2001 by Her Majesty's Prison Service and the Home Office.
	Section 127 of the Criminal Justice and Public Order Act 1994 provides that a person owes a duty to the Secretary of State not to induce prison officers, custody officers and prison custody officers to withhold their services or to commit a breach of discipline. Loss or damage caused to the Secretary of State by a person who induces a prison officer to withhold his service or to commit a breach of discipline is actionable by the Secretary of State against that person.
	The change that is proposed is to amend Section 127 to disapply it in relation to inducements in respect of prison officers in England, Wales and Scotland. The disapplication of Section 127 will reinstate the full statutory trades union rights of prison officers in England, Wales and Scotland, thereby honouring a pre-election pledge from the Government that goes back to 1997.
	The former Home Secretary, David Blunkett, reinforced that commitment at the Prison Officers' Association annual conference in May 2003. Between 1997 and the present day there has been a much improved relationship between the prison services in both England and Wales and under Scottish jurisdiction and the Prison Officers' Association (POA). That improved relationship resulted in both the POA and the Prison Service in England and Wales signing a contractually binding agreement that resulted in third-party dispute resolution through an independent arbitrator tied to a no-strike agreement.
	That agreement, which was known as the voluntary agreement, was signed in 2001 and provided in Clause 4(11) that the Prison Officers' Association would not induce, authorise or support any form of industrial action by any of its members relating to a dispute concerning any matter whether covered by the voluntary agreement or otherwise, which would have had the effect of disrupting the operations of the Prison Service and both parties will use their best endeavours to prevent any form of industrial action.
	The Prison Officers' Association gave notice of termination of the voluntary agreement on 27 January last year, which underpinned the proposal to disapply Section 127 so far as England and Wales jurisdiction is concerned. However, a new, legally enforceable, collective agreement between the Prison Service and the POA is now in place, and provides protections equivalent to the voluntary agreement. In Scotland, the Scottish Prison Service entered into its own voluntary industrial relations agreement in December 2001 with each of the trades unions that it recognises for collective bargaining purposes.
	In respect of the Prison Officers' Association, the voluntary industrial relations agreement is similarly legally binding to the extent that the POA have contracted not to induce, authorise or support any form of industrial action by its members. The POA has not given notice to withdraw from the voluntary industrial relations agreement in Scotland where there appears to be a continuing degree of satisfaction on the part of the Scottish Prison Service and the POA with the arrangement in place.
	There is no legally enforceable collective agreement in place in Northern Ireland between the Northern Irish prison service and the Prison Officers Association similar to those in place in England and Wales and Scotland. Therefore, this prevents the Secretary of State from disapplying Section 127 from this group of workers as there will be no necessary protection in place following disapplication.
	In the England and Wales and Scotland prison services an atmosphere of joint working and consultation has been fostered, which has borne fruit in terms of better dialogue and an open approach to contentious issues. At the same time the legally enforceable collective agreements tie the parties in both jurisdictions into formal dispute resolution procedures which include recourse to ACAS conciliation and independent binding arbitration.
	In the event of the POA giving notice to terminate the legally enforceable collective agreement in circumstances where further agreement was not possible, the Secretary of State would seek during the 12-month period of notice of withdrawal from the agreement to reapply Section 127 through primary legislation.
	The Secretary of State considers the disapplication of Section 127 as the final step to cementing the positive industrial relations between the POA and the prison services in England and Wales and Scotland.
	There have been two periods of consultation on this proposal. The initial consultation period ran from 15 December 2003 to 9 February last year. In the light of representations received during the initial round, changes were made to the proposals in line with Section 6(2)(1) of the 2001 Act.
	One important issue was raised by a consortium of private custodial service providers. It stated that if Section 127 of the Criminal Justice and Public Order Act in England and Wales and Scotland were removed in its entirety, there would be no necessary protection in place in its prisons because it did not have legally enforceable collective agreements of the kind that obtained in the public sector service in England and Wales and Scotland.
	The Secretary of State accepted the consortium's point and took the decision to amend the proposed order so as not to disapply Section 127 in respect of prison officers in Northern Ireland and prison custody officers employed by the private sector, wherever they may be employed in the United Kingdom.
	The further consultation period ran from 26 March until 21 May last year. No materially adverse responses were received to the revised proposals. These proposals have been scrutinised by respective parliamentary committees. Your Lordships' Select Committee on Delegated Powers and Regulatory Reform concluded that the proposals within the meaning of the Regulatory Reform Act 2001 do not create any new burdens.
	The department also demonstrated to the satisfaction of the committee that the proposal would neither confound any reasonable expectations nor reduce any necessary protections.
	I should like to place on record my thanks to members of the Select Committee for the time and consideration they have given in scrutinising the proposals and for recommending the proposals to your Lordships' House. I beg to move.
	Moved, That the draft regulatory reform order laid before the House on 17 January be approved [8th Report from the Regulatory Reform Committee].—(Lord Bassam of Brighton.)

Viscount Bridgeman: My Lords, while we broadly welcome the thrust of this order, I draw the Minister's attention to the rider at page 7 of the Delegated Powers Committee. I should like his reassurance that there will be no interruption in protection should for any reason the agreements fail and Section 127 was reinstated. At paragraph 7 the committee mentioned the possibility of this happening in a Recess. Can I have an assurance again that Section 127 would be in place in time? The committee's further rider is that if negotiations for the continuance of an agreement were in progress, the Government would give ample time for the reinstatement of Section 127 to take account of those negotiations failing.